In 1965, the Chief Justice, Earl Warren,
appointed an Advisory Committee on rules of evidence. The Committee, whose
reporter was Professor Edward Cleary, proposed a draft Federal Rules of Evidence
in 1969. A second draft was proposed in 1971, and in 1972, the Supreme Court
prescribed Federal Rules of Evidence, which were to become effective on July 1,
1973. Pursuant to the Rules Enabling Act and other congressional laws, Congress
suspended the implementation of the Federal Rules of Evidence pending further
study, initially by the House and Senate Committees on the Judiciary. Then the
Watergate scandal broke. Congressional evaluation of the Federal Rules of
Evidence did not occur until 1973 and 1974. A number of proposed rules were
amended, some, notably rules on privileges, were deleted, and still others were
the subject of discussion but not amendment in Congress. The Federal Rules of
Evidence became law on January 2, 1975 (Public Law 93-595, 88 Stat. 1926), and were made effective in federal courts on July 1, 1975.

Because Congress changed some of these Rules, the following consists of 1)
the Advisory Committee’s Notes to the final draft of the Federal Rules of
Evidence before transmitted to the Supreme Court for consideration; 2) relevant
legislative history of the a) House Committee on the Judiciary, b) Senate
Committee on the Judiciary, and c) Conference Report; 3) subsequent Notes of the
Advisory Committee, as a number of rules have been amended since their adoption
in 1975; and 4) additional legislative history concerning rules that have been
adopted or amended since the promulgation of these Rules in 1975.

I have placed the Advisory Committee Notes in order of most recent to oldest,
and I have inserted applicable legislative history within some of those Advisory
Committee Notes. If you wish to look at the original Advisory Committee’s Notes,
they are found in 56 F.R.D. 183 et seq. The original reports of the House
Committee on the Judiciary are found in H.R. Rep. No. 650, 93rd
Cong., 1st Sess. (1973), 1974 U.S. Code Cong. & Admin. News 7075 et
seq., the Senate Committee on the Judiciary in S. Rep. No. 1277, 93rd
Cong., 2nd Sess. (1974), 1974 U.S. Code Cong. & Admin. News 7051, and
the Conference Report in Conf. Rep. No. 1597, 1974 U.S. Code Cong. & Admin. News
7098.

I have included only those Notes from the Federal Judicial Center when the
Rule adopted by Congress differs from the Rule proposed by the Supreme Court.
Thus, if you do not see a "Note by Federal Judicial Center," then Congress did
not amend the Rule proposed by the Court.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by substituting "court" in place of "judge," with appropriate pronominal
change.

Advisory Committee’s Note to 2000 Amendment to Rule 103

The amendment applies to all rulings on evidence whether they occur at or
before trial, including the so-called "in limine" rulings. One of the
most difficult questions arising from in limine and other evidentiary
rulings is whether a losing party must renew an objection or offer of proof when
the evidence is or would be offered at trial, in order to preserve a claim of
error on appeal. Courts have taken differing approaches to this question. Some
courts have held that a renewal at the time the evidence is to be offered at
trial is always required. See, e.g., Collins v. Wayne Corp., 621 F.2d 777
(5th Cir. 1980). Some courts have taken a more flexible approach, holding that
renewal is not required if the issue decided is one that (1) was fairly
presented to the trial court for an initial ruling, (2) may be decided as a
final matter before the evidence is actually offered, and (3) was ruled on
definitively by the trial judge. See, e.g., Rosenfeld v. Basquiat, 78
F.3d 84 (2d Cir. 1996) (admissibility of former testimony under the Dead Man’s
Statute; renewal not required). Other courts have distinguished between
objections to evidence, which must be renewed when evidence is offered, and
offers of proof, which need not be renewed after a definitive determination is
made that the evidence is inadmissible. See, e.g., Fusco v. General Motors
Corp., 11 F.3d 259 (1st Cir. 1993). Another court, aware of this Committee’s
proposed amendment, has adopted its approach. Wilson v. Williams, 182
F.3d 562 (7th Cir. 1999) (en banc). Differing views on this question create
uncertainty for litigants and unnecessary work for the appellate courts.

The amendment provides that a claim of error with respect to a definitive
ruing is preserved for review when the party has otherwise satisfied the
objection or offer of proof requirements of Rule 103(a). When the ruling is
definitive, a renewed objection or offer of proof at the time the evidence is to
be offered is more a formalism than a necessity. See Fed. R. Civ. P. 46
(formal exceptions unnecessary); Fed.R.Cr.P. 51 (same); United States v.
Mejia-Alarcon, 995 F.2d 982, 986 (10 Cir. 1993) ("Requiring a party to renew
an objection when the district court has issued a definitive ruling on a matter
than can be fairly decided before the trial would be in the nature of a formal
exception and therefore unnecessary.") On the other hand, when the trial court
appears to have reserved its ruling or to have indicated that the ruling is
provisional, it makes sense to require the party to bring the issue to the
court’s attention subsequently. See, e.g., United States v. Vest, 116
F.3d 1179, 1188 (7th Cir. 1997) (where the trial court ruled in limine
that testimony from defense witnesses could not be admitted, but allowed the
defendant to seek leave at trial to call the witnesses should their testimony
turn out to be relevant, the defendant’s failure to seek such leave at trial
meant that it was "too late to reopen the issue now on appeal"); United
States v. Valenti, 60 F.3d 941 (2d Cir. 1995) (failure to proffer evidence
at trial waives any claim of error where the trial judge had stated that he
would reserve judgment on the in limine motion until he had heard the
trial evidence).

The amendment imposes the obligation on counsel to clarify whether an in
limine or other evidentiary ruling is definitive when there is doubt on that
point. See, e.g., Walden v. Georgia-Pacific Corp., 126 F.3d 506, 520 (3d
Cir. 1997) (although "the district court told plaintiffs’ counsel not to reargue
every ruling, it did not countermand its clear opening statement that all of its
rulings were tentative, and counsel never requested clarification, as he might
have done.")

Even where the court’s ruling is definitive, nothing in the amendment
prohibits the court from revisiting its decision when the evidence is to be
offered. If the court changes its initial ruling, or if the opposing party
violates the terms of the initial ruling, objection must be made when the
evidence is offered to preserve the claim of error for appeal. The error, if
any, in such a situation occurs only when the evidence is offered and admitted.
United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896
F.2d 949, 9565 (5th Cir. 1990) ("objection is required to preserve error when an
opponent, or the court itself, violates a motion in limine that was
granted"); United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987) (claim
of error was not preserved where the defendant failed to object at trial to
secure the benefit of a favorable advance ruling).

A definitive advance ruling is reviewed in light of the facts and
circumstances before the trial court at the time of the ruling. If the relevant
facts and circumstances change materially after the advance ruling has been
made, those facts and circumstances cannot be relied upon on appeal unless they
have been brought to the attention of the trial court by way of a renewed, and
timely, objection, offer of proof, or motion to strike. See Old Chief v.
United States, 519 U.S. 172, 182, n.6 (1997) ("It is important that a
reviewing court evaluate the trial court’s decision from its perspective when it
had to rule and not indulge in review by hindsight."). Similarly, if the court
decides in an advance ruling that proffered evidence is admissible subject to
the eventual introduction by the proponent of a foundation for the evidence, and
that foundation is never provided, the opponent cannot claim error based on the
failure to establish the foundation unless the opponent calls that failure to
the court’s attention by a timely motion to strike or other suitable motion.
See Huddleston v.United States, 485 U.S.681, 790, n.7 (1988) ("It is, of
course, not the responsibility of the judge sua sponte to ensure that the
foundation evidence is offered; the objector must move to strike the evidence if
at the close of the trial the offeror has failed to satisfy the condition.").

Nothing in the amendment is intended to affect the provisions of Fed. R. Civ.
P. 72(a) or 28 U.S.C. §§ 636(b)(1) pertaining to nondispositive pretrial rulings
by magistrate judges in proceedings that are not before a magistrate judge by
consent of the parties. Fed. R. Civ. P. 72(a) provides that a party who fails to
file a written objection to a magistrate judge’s nondispositive order within ten
days of receiving a copy "may not thereafter assign as error a defect" in the
order. 28 U.S.C. §§ 636(b)(1) provides that any party "may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court" within ten days of receiving a copy of the order. Several courts
have held that a party must comply with this statutory provision in order to
preserve a claim of error. See, e.g., Wells v. Shriners Hospital, 109
F.3d 198, 200 (4th Cir. 1997) ("[i]n this circuit, as in others, a party ‘may’
file objections within ten days or he may not, as he chooses, but he ‘shall’ do
so if he wishes further consideration."). When Fed. R. Civ. P. 72(a) or 28 U.S.C.
§§ 636(b)(1) is operative, its requirement must be satisfied in order for a
party to preserve a claim of error on appeal, even where Evidence Rule 103(a)
would not require a subsequent objection or offer of proof.

Nothing in the amendment is intended to affect the rule set forth in Luce
v. United States, 469 U.S. 38 (1984), and its progeny. The amendment
provides that an objection or offer of proof need not be renewed to preserve a
claim of error with respect to a definitive pretrial ruling. Luce answers
affirmatively a separate question: whether a criminal defendant must testify at
trial in order to reserve a claim of error predicated upon a trial court’s
decision to admit the defendant’s prior convictions for impeachment. The Luce
principle has been extended by many lower courts to other situations. See
United States v. DiMatteo, 759 F.2d 831 (11th Cir. 1986) (applying Luce
where the defendant’s witness would be impeached with evidence offered under
Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir.
1994) ("Although Luce involved impeachment by conviction under Rule 609,
the reasons given by the Supreme Court for requiring the defendant to testify
apply with full force to the kind of Rule 403 and 404 objections that are
advanced by Goldman in this case."); Palmieri v. DeFaria, 88 F.3d 136 (2d
Cir. 1996) (where the plaintiff decided to take an adverse judgment rather than
challenge an advance ruling by putting on evidence at trial, the in limine
ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d
900 (2d Cir. 1988) (where uncharged misconduct is ruled admissible if the
defendant pursues a certain defense, the defendant must actually pursue that
defense at trial in order to preserve a claim of error on appeal); United
States v. Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court rules
in limine that the defendant would waive his fifth amendment privilege were
he to testify, the defendant must take the stand and testify in order to
challenge that ruling on appeal).

The amendment does not purport to answer whether a party who objects to
evidence that the court finds admissible in a definitive rule, and who then
offers the evidence to "remove the sting" of its anticipated prejudicial effect,
thereby waives the right to appeal the trial court’s ruling. See, e.g.,
United States v. Fisher, 106 F.3d 622 (5th Cir. 1997) (where the trial judge
ruled in limine that the government could use a prior conviction to
impeach the defendant if he testified, the defendant did not waive his right to
appeal by introducing the conviction on direct examination); Judd v. Rodman,
105 F.3d 1339 (11th Cir. 1997) (an objection made in limine is sufficient
to reserve a claim of error when the movant, as a matter of trial strategy,
presents the objectionable evidence herself on direct examination to minimize
its prejudicial effect); Gill v. Thomas, 83 F.3d 537, 540 (1st Cir. 996)
("by offering the misdemeanor evidence himself, Gill waived his opportunity to
object and thus did not preserve the issue for appeal"); United States v.
Williams, 939 F.2d 721 (9th Cir. 1991) (objection to impeachment evidence
was waived where the defendant was impeached on direct examination).

Advisory Committee’s Note

Subdivision (a) states the law as generally accepted today. Rulings on
evidence cannot be assigned as error unless (1) a substantial right is affected,
and (2) the nature of the error was called to the attention of the judge, so as
to alert him to the proper course of action and enable opposing counsel to take
proper corrective measures. The objection and the offer of proof are the
techniques for accomplishing these objectives. For similar provisions see
Uniform Rules 4 and 5; California Evidence Code §§ 353 and 354; Kansas Code of
Civil Procedure §§ 60-404 and 60-405. The rule does not purport to change the
law with respect to harmless error. See 28 U.S.C. § 2111, F.R.Civ.P. 61,
F.R.Crim.P. 52, and decisions construing them. The status of constitutional
error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.
Ct. 827, 17 L. Ed. 2d 705 (1967), reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18
L. Ed. 2d 241.

Subdivision (b). The first sentence is the third sentence of Rule 43(c)
of the Federal Rules of Civil Procedure [A footnote from the Federal Judicial
Center states, "Rule 43(c) of the Federal Rules of Civil Procedure was deleted
by order of the Supreme Court entered on November 20, 1972, 93 S. Ct. 3073,
3,075, 3076, 34 L. Ed. 2d lxv. ccv, ccviii, which action was affirmed by the
Congress in P.L. 93-595 § 3 (January 2, 1975)."] virtually verbatim. Its purpose
is to reproduce for an appellate court, insofar as possible, a true reflection
of what occurred in the trial court. The second sentence is in part derived from
the final sentence of rule 43(c). It is designed to resolve doubts as to what
testimony the witness would have in fact given, and, in nonjury cases, to
provide the appellate court with material for a possible final disposition of
the case in the event of reversal of a ruling which excluded evidence. See 5
Moore’s Federal Practice § 43.11 (2d ed. 1968). Application is made
discretionary in view of the practical impossibility of formulating a
satisfactory rule in mandatory terms.

Subdivision (c). This subdivision proceeds on the supposition that a
ruling which excludes evidence in a jury case is likely to be a pointless
procedure if the excluded evidence nevertheless comes to the attention of the
jury. Bruton v. United States, 389 U.S. 818, 88 S. Ct. 126, 19 L. Ed. 2d 70
(1967). Rule 43(c) of the Federal Rules of Civil Procedure provides: "The court
may require the offer to made out of the hearing of the jury." In re McConnell,
370 U.S. 230, 82 S. Ct. 1288, 8 L. Ed. 2d 434 (1962), left some doubt whether
questions on which an offer is based must first be asked in the presence of the
jury. The subdivision answers in the negative. The judge can foreclose a
particular line of testimony and counsel can protect his record without a series
of questions before the jury, designed at best to waste time and at worst "to
waft into the jury box" the very matter sought to be excluded.

Subdivision (d). This wording of the plain error principle is from Rule
52(b) of the Federal Rules of Criminal Procedure. While judicial unwillingness
to be constricted by mechanical breakdowns of the adversary system has been more
pronounced in criminal cases, there is no scarcity of decisions to the same
effect in civil cases. In general, see Campbell, Extent to Which Courts of
Review Will Consider Questions Not Properly Raised and Preserved, 7 Wis. L. Rev.
91, 160 (1932); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham
L. Rev. 477 (1958-59); 64 Harv. L. Rev. 652 (1951). In the nature of things the
application of the plain error rule will be more likely with respect to the
admission of evidence than to exclusion, since failure to comply with normal
requirements of offers of proof is likely to produce a record which simply does
not disclose the error.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by substituting "court" in place of "judge," with appropriate pronominal
change, and by adding to subdivision (c) the concluding phrase, "or when an
accused is a witness, if he so requests." [Fn 1 by the Federal Judicial Center
states, "The effect of the amendment was to restore language included in the
1971 Revised Draft of the Proposed Rules but deleted before the rules were
presented to and prescribed by the Supreme Court."]

Advisory Committee’s Note

Subdivision (a). The applicability of a particular rule of evidence often
depends upon the existence of a condition. Is the alleged expert a qualified
physician? Is a witness whose former testimony is offered unavailable? Was a
stranger present during a conversation between attorney and client? In each
instance the admissibility of evidence will turn upon the answer to the question
of the existence of the condition. Accepted practice, incorporated in the rule,
places on the judge the responsibility for these determinations. McCormick § 53;
Morgan, Basic Problems of Evidence 45-50 (1962).

To the extent that these inquiries are factual, the judge acts as a trier of
fact. Often, however, rulings on evidence call for an evaluation in terms of a
legally set standard. Thus when a hearsay statement is offered as a declaration
against interest, a decision must be made whether it possesses the required
against-interest characteristics. These decisions, too, are made by the judge.

In view of these considerations, this subdivision refers to preliminary
requirements generally by the broad term "questions," without attempt at
specification.

This subdivision is of general application. It must, however, be read as
subject to the special provisions for "conditional relevancy" in subdivision (b)
and those for confessions in subdivision (c).

If the question is factual in nature, the judge will of necessity receive
evidence pro and con on the issue. The rule provides that the rules of evidence
in general do not apply to this process. McCormick § 53, p. 123, n. 8, points
out that the authorities are "scattered and inconclusive," and observes:

"Should the exclusionary law of evidence, ‘the child of the jury system’
in Thayer’s phrase, be applied to this hearing before the judge? Sound sense
backs the view that it should not and that the judge should be empowered to
hear any relevant evidence, such as affidavits or other reliable hearsay."

This view is reinforced by practical necessity in certain situations. An
item, offered and objected to, may itself be considered in ruling on
admissibility, though not yet admitted in evidence. Thus the content of an
asserted declaration against interest must be considered in ruling whether it is
against interest. Again, common practice calls for considering the testimony of
a witness, particularly a child, in determining competency. Another example is
the requirement of Rule 602 dealing with personal knowledge. In the case of
hearsay, it is enough, if the declarant "so far as appears [has] had an
opportunity to observe the fact declared." McCormick, § 10, p. 19.

If concern is felt over the use of affidavits by the judge in preliminary
hearings on admissibility attention is directed to the many important judicial
determinations made on the basis of affidavits. Rule 47 of the Federal Rules of
Criminal Procedure provides:

"An application to the court for an order shall be by motion.... It may be
supported by affidavit."

The Rules of Civil Procedure are more detailed. Rule 43(e), dealing with
motions generally, provides:

"When a motion is based on facts not appearing of the record the court
may hear the matter on affidavits presented by the respective parties, but
the court may direct that the matter be heard wholly or partly on oral
testimony or depositions."

Rule 4(g) provides for proof of service by affidavit. Rule 56 provides in
detail for the entry of summary judgment based on affidavits. Affidavits may
supply the foundation for temporary restraining orders under Rule 65(b).

The study may for the California Law Revision Commission recommended an
amendment to Uniform Rule 2 as follows:

"In the determination of the issue aforesaid [preliminary determination],
exclusionary rules shall not apply, subject, however, to Rule 45 and any
valid claim of privilege." Tentative Recommendation and a Study Relating to
the Uniform Rules of Evidence (Article VIII, Hearsay), Cal. Law Revision
Comm’n, Rep., Rec. & Studies, 470 (1962).

The proposal was not adopted in the California Evidence Code. The Uniform
Rules are likewise silent on the subject. However, New Jersey Evidence Rule
8(1), dealing with preliminary inquiry by the judge, provides:

"In his determination the rules of evidence shall not apply except for
Rule 4 [exclusion on grounds of confusion, etc.] or a valid claim of
privilege."

Subdivision (b). In some situations, the relevancy of an item of
evidence, in the large sense, depends upon the existence of a particularly
preliminary fact. thus when a spoken statement is relied upon to prove notice to
X, it is without probative value unless X heard it. Or if a letter purporting to
be from Y is relied upon to establish an admission by him, it has no probative
value unless Y wrote or authorized. Relevance in this sense has been labelled
"conditional relevancy." Morgan, Basic Problems of Evidence 45-47 (1962).
Problems arising in connection with it are to be distinguished from problems of
logical relevancy, e.g., evidence in a murder case that accused on the day
before purchased a weapon the kind used in the killing, treated in Rule 401.

If preliminary questions of conditional relevancy were determined solely by
the judge, as provided in subdivision (a), the functioning of the jury as a
trier of fact would be greatly restricted and in some cases virtually destroyed.
These are appropriate questions for juries. Accepted treatment, as provided in
the rule, is consistent with that given fact questions generally. The judge
makes a preliminary determination whether the foundation of evidence is
sufficient to support a finding of fulfillment of the condition. If so, the item
is admitted. If after all that fulfillment of the condition is not established,
the issue is for them. If the evidence is not such as to allow a finding, the
judge withdraws the matter from their consideration. Morgan, supra; California
Evidence Code § 403; New Jersey Rule 8(2). See also Uniform Rules 19 and 67.

The order of proof here, as generally, is subject to the control of the
judge.

Subdivision (c). Preliminary hearings on the admissibility of confessions
must be conducted outside the hearing of the jury. See Jackson v. Denno, 378
U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).[Fn 2 by the Federal Judicial
Center states, "At this point the Advisory Committee’s Note to the 1971 Revised
Draft contained the sentence, "Also, due regard for the right of an accused not
to testify generally in the case requires that he be given an option to testify
out of the presence of the jury upon preliminary matters." The statement was
deleted in view of the deletion from the rule, mentioned in the preceding
footnote."] Otherwise, detailed treatment of when preliminary matters should be
heard outside the hearing of the jury is not feasible. The procedure is time
consuming. Not infrequently the same evidence which is relevant to the issue of
establishment of fulfillment of a condition precedent to admissibility is also
relevant to eight or credibility and time is saved by taking foundation proof in
the presence of the jury. Much evidence on preliminary questions though not
relevant to jury issues, may be heard by the jury with no adverse effect. A
great deal must be left to the discretion of the judge who will act as the
interests of justice require.

Report of the House Committee on the Judiciary

Rule 104(c) as submitted to Congress provided that hearings on the
admissibility of confessions shall be conducted outside the presence of the jury
and hearings on all other preliminary matters should be so conducted when the
interests of justice require. The Committee amended the Rule to provide that
where an accused is a witness as to a preliminary matter, he has the right, upon
his request, to be heard outside the jury’s presence. Although recognizing that
in some cases duplication of evidence would occur and that the procedure could
be subject to abuse, the Committee believed that a proper regard for the right
of an accused not to testify generally in the case dictates that he be given an
option to testify out of the presence of the jury on preliminary matters.

The Committee construes the second sentence of subdivision (c) as applying to
civil actions and proceedings as well as to criminal cases, and on this
assumption has left the sentence unamended.

Advisory Committee’s Note

Subdivision (d). The limitation upon cross-examination is designed to
encourage participation by the accused in the determination of preliminary
matters. He may testify concerning them without exposing himself to
cross-examination generally. The provision is necessary because of the breadth
of cross-examination [possible] under Rule 611(b).

Under Rule 104(c) the hearing on a preliminary matter may at times be
conducted in front of the jury. Should an accused testify in such a hearing,
waiving his privilege against self-incrimination as to the preliminary issue,
Rule 104(d) provides that he will not generally be subject to cross-examination
as to any other issue. This rule is not, however, intended to immunize the
accused from cross-examination where, in testifying about a preliminary issue,
he injects other issues into the hearing. If he could not be cross-examined
about any issues gratuitously raised by him beyond the scope of preliminary
matters, injustice might result. Accordingly, in order to prevent any such
unjust result, the committee intends the rule to be construed to provide that
the accused may subject himself to cross-examination as to issues raised by his
own testimony upon a preliminary matter before a jury.

The rule enacted by the Congress is the rule prescribed by the Supreme Court
as Rule 106, amended by substituting "court" in place of "judge." Rule 105 as
prescribed by the Court, which was deleted from the rules enacted by the
Congress, is set forth in the Appendix hereto, together with a statement of the
reasons for the deletion.

Advisory Committee’s Note

A close relationship exists between this rule and Rule 403 which ...
[provides for] exclusion when "probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury." The present rule recognizes the practice of admitting evidence for a
limited purpose and instructing the jury accordingly. The availability and
effectiveness of this practice must be taken into consideration in reaching a
decision whether to exclude for unfair prejudice under Rule 403. In Bruton v.
United States, 389 U.S. 818, 88 S. Ct. 126, 19 L. Ed. 2d 70 (1967), the Court
ruled that a limiting instruction did not effectively protect the accused
against the prejudicial effect of admitting in evidence the confession of a
codefendant which implicated him. The decision does not, however, bar the use of
limited admissibility with an instruction where the risk of prejudice is less
serious.

Similar provisions are found in Uniform Rule 6; California Evidence Code
§ 355; Kansas Code of Civil Procedure § 60-406; New Jersey Evidence Rule 6. The
wording of the present rule differs, however, in repelling any implication that
limiting or curative instructions are sufficient in all situations.

Report of House Committee on the Judiciary

Rule 106 as submitted by the Supreme Court (now Rule 105 in the bill) dealt
with the subject of evidence which is admissible as to one party or for one
purpose but is not admissible against another or for another purpose. The
Committee adopted this Rule without change on the understanding that it does not
affect the authority of a court to order a severance in a multi-defendant case.

The rule is an expression of the rule of completeness. McCormick § 56. It is
manifested as to depositions in Rule 32(a)(4) of the Federal Rules of Civil
Procedure, of which the proposed rule is substantially a restatement.

The rule is based on two considerations. The first is the misleading
impression created by taking matters out of context. The second is the
inadequacy of repair work when delayed to a point later in the trial. See
McCormick § 56; California Evidence Code § 356. The rule does not in any way
circumscribe the right of the adversary to develop a matter on cross-examination
or as part of his own case.

For practical reasons, the rule is limited to writings and recorded
statements and does not apply to conversations.

The rule enacted by Congress is the rule prescribed by the Supreme Court with
the following changes:

In subdivisions (c) and (d) the words "judge or" before "court" were deleted.

Subdivision (g) as it is shown was substituted in place of, "The judge shall
instruct the jury to accept as established any facts judicially noticed." The
substituted language is from the 1969 Preliminary Draft. 46 F.R.D. 161, 195.

Advisory Committee’s Note

Subdivision (a). This is the only evidence rule on the subject of
judicial notice. It deals only with judicial notice of "adjudicative" facts. No
rule deals with judicial notice of "legislative" facts. Judicial notice of
matters of foreign law is treated in Rule 44.1 of the Federal Rules of Civil
Procedure and Rule 26.1 of the Federal Rules of Criminal Procedure.

The omission of any treatment of legislative facts results from fundamental
differences between judicial facts and legislative facts. Adjudicative facts are
simply the facts of a particular case. Legislative facts, on the other hand, are
those which have relevance to legal reasoning and the lawmaking process whether
in the formulation of a legal principle or a ruling by a judge or court or in
the enactment of a legislative body. The terminology was coined by Professor
Kenneth Davis in his article An Approach to Problems of Evidence in the
Administrative Process, 55 Harv. L. Rev. 364, 404-407 (1942). The following
discussion draws extensively upon his writings. In addition, see the same
author’s Judicial Notice, 55 Colum. L. Rev. 945 (1955); Administrative Law
Treatise, ch. 15 (1958); A System of Judicial Notice Based on Fairness and
Convenience, in Perspectives of Law 69 (1964).

The usual method of establishing adjudicative facts is through the
introduction of evidence, ordinarily consisting of the testimony of witnesses.
If particular facts are outside the area of reasonable controversy, this process
is dispensed with as unnecessary. A high degree of indisputability is the
essential prerequisite.

Legislative facts are quite different. As Professor Davis says:

"My opinion is that judge-made law would stop growing if judges, in thinking
about questions of law and policy, were forbidden take into account the facts
they believe, as distinguished from facts which are ‘clearly ... within the
domain of the indisputable.’ Facts most needed in thinking about difficult
problems of law and policy have a way of being outside the domain of the clearly
indisputable." A System of Judicial Notice Based on Fairness and convenience,
supra , at 82.

An illustration is Hawkins v. United States, 358 U.S. 74, 79 S. Ct. 136, 3
L.#d.2d 125 (1958), in which the Court refused to discard the common law rule
that one spouse could not testify against the other, saying, "Adverse testimony
given in criminal proceedings would, we think, be likely to destroy almost any
marriage." This conclusion has a large intermixture of fact, but the factual
aspect is scarcely "indisputable." See Hutchins and Slesinger, Some Observations
on the Law of Evidence--Family Relations, 13 Minn. L. Rev. 675 (1929). If the
destructive effect of the giving of adverse testimony by a spouse is not
indisputable, should the Court have refrained from considering it in the absence
of supporting evidence?

"If the Model Code or the Uniform Rules had been applicable, the Court would
have been barred from thinking about the essential factual ingredient of the
problems before it, and such a result would be obviously intolerable. What the
law needs at its growing points is more, not less, judicial thinking about the
factual ingredients of problems of what the law ought to be, and the needed
facts are seldom ‘clearly’ indisputable." Davis, supra, at 83.

Professor Morgan gave the following description of the methodology of
determining domestic law:

"In determining the content or applicability of a rule of domestic law,
the judge is unrestricted in his investigation and conclusion. He may reject
the propositions of either party or of both parties. He may consult the
sources of pertinent data to which they refer, or he may refuse to do so. He
may make an independent search for persuasive data or rest content with what
he has or what the parties present.... [T]he parties do no more than to
assist; the control no part of the process." Morgan, Judicial Notice, 57
Harv. L. Rev. 269, 270-271 (1944).

This is the view which should govern judicial access to legislative facts. It
renders inappropriate any limitation in the form of indisputability, any formal
requirements of notice other than those already inherent in affording
opportunity to hear and be heard and and exchanging briefs, and any requirement
of formal findings at any level. It should, however, leave open the possibility
of introducing evidence through regular channels in appropriate situations. See
Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S. Ct. 187, 79 L. Ed.
281 (1934), where the cause was remanded for the taking of evidence as to the
economic conditions and trade practices underlying the New York Milk Control
Law.

Similar considerations govern the judicial use of non-adjudicative facts in
ways other than formulating laws and rules. Thayer described them as a part of
the judicial reasoning process.

"In conducting a process of judicial reasoning, as of other reasoning, not a
step can be taken without assuming something which has not been proved; and the
capacity to do this with competent judgment and efficiency, is imputed to judges
and juries as part of their necessary mental outfit." Thayer, Preliminary
Treatise on Evidence, 279-280 (1898).

As Professor Davis points out, A System of Judicial Notice Based on Fairness
and Convenience, in Perspectives of Law 69, 73 (1964), every case involves the
use of hundreds or thousands of non-evidence facts. When a witness in an
automobile accident case says "car," everyone, judge and jury included,
furnishes, from non-evidence sources within himself, the supplementing
information that the "car" is an automobile, to a railroad car, that it is
self-propelled, probably by an internal combustion engine, that it may be
assumed to have four wheels with pneumatic rubber tires, and so on. The judicial
process cannot construct every case from scratch, like Descartes creating a
world based on the postulate, Cogito, ergo sum. These items could not
possibly be introduced into evidence, and no one suggests that they be. Nor are
they appropriate subjects for any formalized treatment of judicial notice of
facts. See Levin and Levy, Persuading the Jury with Facts Not in Evidence: The
Fiction-Science Spectrum, 105 U. Pa. L. Rev. 139 (1956).

Another aspect of what Thayer had in mind is the use of non-evidence facts to
appraise of assess the adjudicative facts of the case. Pairs of cases from two
jurisdictions illustrate this use and also the difference between non-evidence
facts thus used and adjudicative facts. In People v. Strook, 347 Ill. 460, 179
N.E. 821 (1932), venue in Cook county had been held not established by testimony
that the crime was committed at 7956 South Chicago Avenue, since judicial notice
would not be taken that the address was in Chicago. However, the same court
subsequently ruled that venue in Cook County was established by testimony that a
crime occurred at 8900 South Anthony Avenue, since notice would be taken of the
common practice of omitting the name of the city when speaking of local
addresses, and the witness was testifying in Chicago. People v. Pride, 16 Ill.
2d 82, 156 N.E. 2d 551 (1959). And in Hughes v. Vestal, 264 N.C. 500, 142 S. E.
2d 361 (1965), the Supreme Court of North Carolina disapproved the trial judge’s
admission in evidence of a state-published table of automobile stopping
distances on the basis of judicial notice, though the court itself had referred
to the same table in an earlier case in a "rhetorical and illustrative" way in
determining that the defendant could not have stopped her car in time to avoid
striking a child who suddenly appeared in the highway and that a nonsuit was
properly granted. Ennis v. Dupree, 262 N.C. 224, 136 S.E. 2d 702 (1964). See
also Brown v. Hale, 263 N.C. 176, 139 S.E. 2d 210 (1964); Clayton v. Rimmer, 262
N.C. 302, 136 S.E. 2d 562 (1964). It is apparent that this use of non-evidence
facts in evaluating the adjudicative facts of the case is not an appropriate
subject for a formalized judicial notice treatment.

If view of these considerations, the regulation of judicial notice of facts
by the present rule extends only to adjudicative facts.

What, then, are "adjudicative" facts? Davis refers to them as those "which
related to the parties," or more fully:

"When a court or an agency finds facts concerning the immediate
parties—who did what, where, when, how, and with what motive or intent—the
court or agency is performing an adjudicative function, and the facts are
conveniently called adjudicative facts. ...

"Stated in other terms, the adjudicative facts are those to which the law
is applied in the process of adjudication. They are the facts that normally
go to the jury in a jury case. They relate to the parties, their activities,
their properties, their businesses." 2 Administrative Law Treatise 353.

Subdivision (b). With respect to judicial notice of adjudicative facts,
the tradition has been one of caution in requiring that the matter be beyond
reasonable controversy. This tradition of circumspection appears to be soundly
based, and no reason to depart from it is apparent. As Professor Davis says:

"The reason we use trial-type procedure, I think, is that we make the
practical judgment, on the basis of experience, that taking evidence,
subject to cross-examination and rebuttal, is the best way to resolve
controversies involving disputes of adjudicative facts, that is, facts
pertaining to the parties. The reason we require a determination on the
record is that we think fair procedure in resolving disputes of adjudicative
facts calls for giving each party a chance to meet in the appropriate
fashion the facts that come to the tribunal’s attention, and the appropriate
fashion for meeting disputed adjudicative facts includes rebuttal evidence,
cross-examination, usually confrontation, and argument (either written or
oral or both). The key to a fair trail is opportunity to use the appropriate
weapons (rebuttal evidence, cross-examination, and argument) to meet adverse
materials that come to the tribunal’s attention." A System of Judicial
Notice Based on Fairness and Convenience, in Perspectives of Law 69, 93
(1964).

The rule proceeds upon the theory that these considerations call for
dispensing with traditional methods of proof only in clear cases. Compare
Professor Davis’ conclusion that judicial notice should be a matter of
convenience, subject to requirements of procedural fairness. Id., 94.

This rule is consistent with Uniform Rule 9(a) and (2) which limit judicial
notice of facts to those "so universally known that they cannot reasonably be
the subject of dispute," those "so generally known or of such common notoriety
within the territorial jurisdiction of the court that they cannot reasonably be
the subject of dispute," and those "capable of immediate and accurate
determination by resort to easily accessible sources of indisputable accuracy."
The traditional textbook treatment has included these general categories
(matters of common knowledge, facts capable of verification), McCormick §§ 324,
325, and then has passed on into detailed treatment of such specific topics as
facts relating to the personnel and records of the court, id. § 327, and other
governmental facts, id. § 328. The California draftsmen, with a background of
detailed statutory regulation of judicial notice, followed a somewhat similar
pattern. California Evidence Code §§ 451, 452. The Uniform Rules, however, were
drafted on the theory that these particular matters are included within the
general categories and need no specific mention. This approach is followed in
the present rule.

The phrase "propositions of generalized knowledge," found in Uniform Rule
9(1) and (2) is not included in the present rule. It was, it is believed,
originally included in Model Code Rules 801 and 802 primarily in order to afford
some minimum recognition to the right of the judge in his "legislative" capacity
(not acting as the trier of fact) to take judicial notice of very limited
categories of generalized knowledge. The limitations thus imposed have been
discarded herein as undesirable, unworkable, and contrary to existing practice.
What is left, then, to be considered, is the status of a "proposition of
generalized knowledge" as an "adjudicative" fact to be noticed judicially and
communicated by the judge to the jury. Thus viewed, it is considered to be
lacking practical significance. While judges use judicial notice of
"propositions of generalized knowledge" in a variety of situations: determining
the validity and meaning of statutes, formulating common-law rules, deciding
whether evidence should be admitted, assessing the sufficiency and effect of
evidence, all are essentially nonadjudicative in nature. When judicial notice is
seen as a significant vehicle for progress in the law, these are the areas
involved, particularly in developing fields of scientific knowledge. See
McCormick 712. It is not believed that judges now instruct juries as to
"propositions of generalized knowledge" derived from encyclopedias or other
sources, or that they are likely to so, or, indeed, that it is desirable that
they do so. There is a vast difference between ruling on the basis of judicial
notice that radar evidence of speed is admissible and explaining to the jury its
principles and degree of accuracy, or between using a table of stopping
distances of automobiles at various speeds in a judicial evaluation of testimony
and telling the jury its precise application in the case. For cases raising
doubt as to the propriety of the use of medical texts by lay triers of fact in
passing on disability claims in administrative proceedings, see Sayers v.
Gardner, 380 F.2d 940 (6th Cir. 1967); Ross v. Gardner, 365 F.2d 554 (6th Cir.
1966); Sosna v. Celebrezze 234 F. supp. 289 (E.D. Pa. 1964); Glendenning v.
Ribicoff, 213 F. Supp. 301 (W.D. Mo. 1962).

Subdivisions (c) and (d). Under subdivision (c) the judge has
discretionary authority to take judicial notice, regardless of whether he is so
requested by a party. The taking of judicial notice is mandatory, under
subdivision (d), only when a party requests it and the necessary information is
supplied. This scheme is believed to reflect existing practice. It is simple and
workable. It avoids troublesome distinctions in the many situations in which the
process of taking judicial notice is not recognized as such.

Compare Uniform Rule 9 making judicial notice of facts universally known
mandatory without request, and making judicial notice of facts generally known
in the jurisdiction or capable of determination by resort to accurate sources
discretionary in the absence of request but mandatory if request is made and the
information furnished. But see Uniform Rule 10(3), which directs the judge to
decline to take judicial notice if available information fails to convince him
that the matter falls clearly within Uniform Rule 9 or is insufficient to enable
him to notice it judicially. Substantially the same approach is found in
California Evidence Code §§ 451-453 and in New Jersey Evidence Rule 9. In
contrast, the present rule treats alike all adjudicative facts which are subject
to judicial notice.

Subdivision (e). Basic considerations of procedural fairness demand an
opportunity to be heard on the propriety of taking judicial notice and the tenor
of the matter noticed. The rule requires the granting of that opportunity upon
request. No formal scheme of giving notice is provided. An adversely affected
party may learn in advance that judicial notice is in contemplation, either by
virtue of being served with a copy of a request by another party under
subdivision (d) that judicial notice be taken, or through an advance indication
by the judge. Or he may have no advance notice at all. The likelihood of the
latter is enhanced by the frequent failure to recognize judicial notice as such.
And in the absence of advance notice, a request made after the fact could not in
fairness be considered untimely. See the provision for hearing on timely request
in the Administrative Procedure Act, 5 U.S.C. § 556(e). See also Revised Model
State Administrative Procedure Act (1961), 9C U.L.A. § 10(4) (Supp. 1967).

Subdivision (f). In accord with the usual view, judicial notice may be
taken at any stage of the proceedings, whether in the trial court or on appeal.
Uniform Rule 12; California Evidence Code 459; Kansas Rules of Evidence
§ 60-412; New Jersey Evidence Rule 9.

Subdivision (g). Much of the controversy about judicial notice has
centered upon the question whether evidence should be admitted in disproof of
facts of which judicial notice is taken.

The writers have been divided. Favoring admissibility are Thayer, Preliminary
Treatise on Evidence 308 (1898); 9 Wigmore § 2567; Davis, A System of Judicial
Notice Based on Fairness and Convenience, in Perspectives of Law 69, 76-77
(1964). Opposing admissibility are Keeffe, Landis and Shaad, Sense and Judicial
Notice—Excerpts Relating to the Morgan-Whitmore Controversy, 14 (1944);
McCormick 710-711. The Model Code and the Uniform Rules are pedicated upon
indisputability of judicially noticed facts.

The proponents of admitting evidence in disproof have concentrated largely
upon legislative facts. Since the p resent rule deals only with judicial notice
of adjudicative facts, arguments directed to legislative facts lose their
relevancy.

Report of House Committee on the Judiciary

Rule 201(g) as received from the Supreme Court provided that when judicial
notice of a fact is taken, the court shall instruct the jury to accept that fact
as established. Being of the view that mandatory instruction to a jury in a
criminal case to accept as conclusive any fact judicially noticed is
inappropriate because contrary to the spirit of the Sixth Amendment right to a
jury trial, the Committee adopted the 1969 Advisory Committee draft of this
subsection, allowing a mandatory instruction in civil actions and proceedings
and a discretionary instruction in criminal cases.

Note on Judicial Notice of Law (by the Advisory Committee)

By rules effective July 1, 1966, the method of invoking the law of a foreign
country is covered elsewhere. Rule 44.1 of the Federal Rules of Civil Procedure;
Rule 26.1 of the Federal Rules of Criminal Procedure. These two new admirably
designed rules are founded upon the assumption that the manner in which law is
fed into the judicial process is never a proper concern of the rules of evidence
but rather of the rules of procedure. The Advisory Committee on Evidence,
believing that this assumption is entirely correct, proposes no evidence rule
with respect to judicial notice of law, and suggests that those matters of law
which, in addition to foreign-country law, have traditionally been treated as
requiring pleading and proof and more recently as the subject of judicial notice
be left to the Rules of Civil and Criminal Procedure.

The bill passed by the House substituted a substantially different rule in
place of that prescribed by the Supreme Court. The Senate bill substituted yet a
further version, which was accepted by the House, was enacted by the Congress,
and is the rule shown above.

Report of the Senate Committee on the Judiciary

This rule governs presumptions in civil cases generally. Rule 302 provides
for presumptions in cases controlled by State law.

As submitted by the Supreme Court, presumptions governed by this rule were
given the effect of placing upon the opposing party the burden of establishing
the nonexistence of the presumed fact, once the party invoking the presumption
established the basic facts giving rise to it.

Instead of imposing a burden of persuasion on the party against whom the
presumption is directed, the House adopted a provision which shifted the burden
of going forward with the evidence. They further provided "even though met with
contradicting evidence, a presumption is sufficient evidence of the fact
presumed, to be considered by the trier of fact." The effect of the amendment is
that presumptions are to be treated as evidence.

The committee feels that the House amendment is ill-advised. As the joint
committees (the Standing Committee on Practice and Procedure of the Judicial
Conference and the Advisory Committee on the Rules of Evidence) stated:
"Presumptions are not evidence, but ways of dealing with evidence." [footnote
omitted] This treatment requires juries to perform the task of considering "as
evidence" facts upon which they have no direct evidence and which may confuse
them in performance of their duties. California had a rule much like that
contained in the House amendment. It was sharply criticized by Justice Traynor
in Speck v. Sarver [footnote omitted] and was repealed after 93 troublesome
years. [footnote omitted]

Professor McCormick gives a concise and compelling critique of the
presumption as evidence rule:

***

"Another solution, formerly more popular than now, is to instruct the jury
that the presumption is ‘evidence’, to be weighed and considered with the
testimony in the case. This avoids the danger that the jury may infer that the
presumption is conclusive, but it probably means little to the jury, and
certainly runs counter to accepted theories of the nature of evidence."
[footnote omitted]

For these reasons the committee has deleted that provision of the
House-passed rule that treats presumptions as evidence. The effect of the rule
as adopted by the committee is to make clear that while evidence of facts giving
rise to a presumption shifts the burden of coming forward with evidence to rebut
or meet the presumption, it does not shift the burden of persuasion on the
existence of the presumed facts. The burden of persuasion remains on the party
to whom it is allocated under the rules governing the allocation in the first
instance.

The court may instruct the jury that they may infer the existence of the
presumed fact from proof of the basic facts giving rise to the presumption.
However, it would be inappropriate under this rule to instruct the jury that the
inference they are to draw is conclusive.

Conference Report

The House bill provides that a presumption in civil actions and proceedings
shifts to the party against whom it is directed the burden of going forward with
evidence to meet or rebut it. Even though evidence contradicting the presumption
is offered, a presumption is considered sufficient evidence of the presumed fact
to be considered by the jury. The Senate amendment provides that a presumption
shifts to the party against whom it is directed the burden of going forward
evidence to meet or rebut the presumption, but it does not shift to that party
the burden of persuasion on the existence of the presumed fact.

Under the Senate amendment, a presumption is sufficient to get a party past
an adverse party’s motion to dismiss made at the end of his case-in-chief. If
the adverse party offers no evidence contradicting the presumed fact, the court
will instruct the jury, that if it finds the basic facts, it may presume the
existence of the presumed fact. If the adverse party does offer evidence
contradicting the presumed fact, the court cannot instructed the jury that it
may presume the existence of the presumed fact from proof of the basic
facts. The court may, however, instruct the jury that it may infer the existence
of the presumed fact from proof of the basic facts.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by adding "and proceedings" after "actions."

Advisory Committee’s Note

A series of Supreme Court decisions in diversity cases leaves no doubt of the
relevance of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.
Ed.1188 (1938), to questions of burden of proof. These decisions are Cities
Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S. Ct. 201, 84 L. Ed. 196 (1939),
Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 647 (1943), and Dick
v. New York Life Ins. Co., 359 U.S. 437, 79 S. Ct. 921, 3 L. Ed. 2d 935 (1959).
They involved burden of proof, respectively, as to status as bona fide
purchaser, contributory negligence, and nonaccidental death (suicide) of an
insured. In each instance the state rule was held to be acceptable. It does not
follow, however, that all presumptions in diversity cases are governed by state
law. In each case cited, the burden of proof question had to do with a
substantive element of the claim or defense. Application of the state law is
called for only when the presumption operates upon such an element. Accordingly
the rule does not apply state law when the presumption operates upon a lesser
aspect of the case, i.e. "tactical" presumptions.

The situations in which the state law is applied have been tagged for
convenience in the preceding discussion as "diversity cases." The designation is
not a completely accurate one since Erie applies to any claim or issue
having its source in state law, regardless of the basis of federal jurisdiction,
and does not apply to a federal claim or issue, even though jurisdiction is
based on diversity. Vestal, Erie RR. v. Tompkins: A Projection, 48 Iowa L. Rev.
248, 257 (1963); Hart and Wechsler, The Federal Courts and the Federal System,
697 (1953); 1A Moore, Federal Practice ¶ 0.305[3] (2d ed. 1964); Wright, Federal
Courts, 217-218 (1963). Hence the rule employs, as appropriately descriptive,
the phrase "as to which state law supplied the rule of decision." See A.L.I.
Study of the Division of Jurisdiction Between State and Federal Courts,
§ 2344(c), p. 40, P.F.D. No. 1 (1965).

Problems of relevancy call for an answer to the question whether an item of
evidence, when tested by the processes of legal reasoning, possesses sufficient
probative value to justify receiving it in evidence. Thus, assessment of the
probative value of evidence that a person purchased a revolver shortly prior to
a fatal shooting with which he is charged is a matter of analysis and reasoning.

The variety of relevancy problems is coextensive with the ingenuity of
counsel in using circumstantial evidence as a means of proof. An enormous number
of cases fall in no set pattern, and this rule is designed as a guide for
handling them. On the other hand, some situations recur with sufficient
frequency to create patterns susceptible of treatment by specific rules. Rule
404 and those following it are of that variety; they also serve as illustrations
of the application of the present rule as limited by the exclusionary principles
of Rule 403.

Passing mention should be made of so-called "conditional" relevancy. Morgan,
Basic Problems of Evidence 45-46 (1962). In this situation, probative value
depends not only upon satisfying the basic requirement of relevancy as described
above but also upon the existence of some matter of fact. For example, if
evidence of a spoken statement is relied upon to prove notice, probative value
is lacking unless the person sought to be charged heard the statement. The
problem is one of fact, and the only rules needed are for the purpose of
determining the respective functions of judge and jury. See Rules 104(b) and
901. The discussion which follows in the present note is concerned with
relevancy generally, not with any particular problem of conditional relevancy.

Relevancy is not an inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence and a matter properly
provable in the case. Does the item of evidence tend to prove the matter sought
to be proved? Whether the relationship exists depends upon principles evolved by
experience or science, applied logically to the situation at hand. James,
Relevancy, Probability and the Law, 29 Calif. L. Rev. 689, 696, n. 15 (1941), in
Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The
rule summarizes this relationship as a "tendency to make the existence" of the
fact to be proved "more probable or less probable." Compare Uniform Rule 1(2)
which states the crux of relevancy as a "tendency in reason," thus perhaps
emphasizing unduly the logical process and ignoring the need to draw upon
experience of science to validate the general principle upon which relevancy in
a particular situation depends.

The standard of probability under the rule is "more ... probable than it
would be without the evidence." Any more stringent requirement is unworkable and
unrealistic. As McCormick § 152, p. 317 says, "A brick is not a wall," or, as
Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 576
(1956), quotes Professor McBaine, "... [I]t is not to be supposed that every
witness can make a home run." Dealing with probability in the language of the
rule has the added virtue of avoiding confusion between questions of
admissibility and questions of the sufficiency of the evidence.

The rule uses the phrase "fact that is of consequence to the determination of
the action" to describe the kind of fact to which proof may properly be
directed. The language is that of California Evidence Code § 210; it has the
advantage of avoiding the loosely used and ambiguous word "material." Tentative
Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. I.
General Provisions), Cal. Law Revision Comm’n, Rep., Rec. & Studies, 10-11
(1964). The fact to be proved may be ultimate, intermediate, or evidentiary; it
matters not, solong as it is of consequence in the determination of the action.
Cf. Uniform Rule 1(2) which requires that the evidence relate to a "material"
fact.

The fact to which the evidence is directed need not be in dispute. While
situations will arise which call for the exclusion of evidence offered to prove
a point conceded by the opponent, the ruling should be made on the basis of such
considerations as waste of time and undue prejudice (see Rule 403), rather than
under any general requirement that evidence is admissible only if directed to
matters in dispute. Evidence which is essentially background in nature can
scarcely be said to involve disputed matter, yet it is universally offered and
admitted as an aid to understanding. Charts, photographs, views of real estate,
murder weapons, and many other items of evidence fall into this category. A rule
limiting admissibility to evidence directed to a controversial point would
invite the exclusion of this helpful evidence, or at least the raising of
endless questions over its admission. Cf. California Evidence Code § 210,
defining relevant evidence in terms of tendency to prove a disputed fact.

The provisions that all relevant evidence is admissible, with certain
exceptions, and that evidence which is not relevant is not admissible are "a
presupposition involved in the very conception of a rational system of
evidence." Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute
the foundation upon which the structure of admission and exclusion rests. For
similar provisions see California Evidence Code §§ 350, 351. Provisions that all
relevant evidence is admissible are found in Uniform Rule 7(f); Kansas Code of
Civil Procedure § 60-407(f); and new Jersey Evidence Rule 7(f); but the
exclusion of evidence which is not relevant is left to implication.

Not all relevant evidence is admissible. The exclusion of relevant evidence
occurs in a variety of situations and may be called for by these rules, by the
Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of Congress,
or by constitutional considerations.

Succeeding rules in the present article, in response to the demands of
particular policies, require the exclusion of evidence despite its relevancy. In
addition, Article V recognizes a number of privileges; Article VI imposes
limitations upon witnesses and the manner of dealing with them; Article VII
specifies requirements with respect to opinions and expert testimony; Article
VIII excludes hearsay not falling within an exception; Article IX spells out the
handling of authentication and identification; and Article X restricts the
manner of proving the contents of writings and recordings.

The Rules of Civil and Criminal Procedure in some instances require the
exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the
Rules of Civil Procedure, by imposing requirements of notice and unavailability
of the deponent, place limits on the use of relevant depositions. Similarly,
Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in
criminal cases, even though relevant. And the effective enforcement of the
command, originally statutory and now found in Rule 5(a) of the Rules of
Criminal Procedure, that an arrested person be taken without unnecessary delay
before a commissioner or other similar officer is held to require the exclusion
of statements elicited during detention in violation thereof. Mallory v. United
States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957); 18 U.S.C.
§ 3501(c).

While congressional enactments in the field of evidence have generally tended
to expand admissibility beyond the scope of the common law rules, in some
particular situations they have restricted the admissibility of relevant
evidence. Most of this legislation has consisted of the formulation of a
privilege or of a prohibition against disclosure. 8 U.S.C. § 1202(f), records of
refusal of visas or permits to enter United States confidential, subject to
discretion of Secretary of State to make available to court upon certification
of need; 10 U.S.C. § 3693, replacement certificate of honorable discharge from
Army not admissible in evidence; 10 U.S.C. § 8693, same as to Air Force; 1 U.S.C.
25 (a)(10), testimony given by bankrupt on his examination is not admissible in
criminal proceedings against him, except that given in hearing upon objection of
discharge; 11 U.S.C. § 205(a), railroad reorganization petition, if dismissed,
not admissible in evidence; 11 U.S.C. § 403(a), a list of creditors filed with
municipal composition plan not an admission; 13 U.S.C. § 9(a), census
information confidential, retained copies of reports privileged; 47 U.S.C.
§ 605, interception and divulgence of wire or radio communications prohibited
unless authorized by sender. These statutory provisions would remain undisturbed
by the rules.

Rule 402 as submitted to the Congress contained the phrase " or by other
rules adopted by the Supreme Court." To accommodate the view that the Congress
should not appear to acquiesce in the Court’s judgment that it has authority
under the existing Rules Enabling Acts to promulgate Rules of Evidence, the
Committee amended the above phrase to read "or by other rules prescribed by the
Supreme Court pursuant to statutory authority" in this and other Rules where the
reference appears.

The case law recognizes that certain circumstances call for the exclusion of
evidence which is of unquestioned relevance. These circumstances entail risks
which range all the way from inducing decision on a purely emotional basis, one
extreme, to nothing more harmful than merely wasting time, at the other extreme.
Situations in this area call for balancing the probative value of an need for
the evidence against the harm likely to result from its admission. Slough,
Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15 (1956); Trautman, Logical or Legal
Relevancy—A Conflict in Theory, 5 Van. L. Rev. 385, 392 (1952); McCormick § 152,
pp. 319-321. The rules which follow in this Article are concrete applications
evolved for particular situations. However, they reflect the policies underlying
the present rule, which is designed as a guide for the handling of situations
for which no specific rules have been formulated.

Exclusion for risk of unfair prejudice, confusion of issues, misleading the
jury, or waste of time, all find ample support in the authorities. "Unfair
prejudice" within its context means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.

The rule does not enumerate surprise as a ground for exclusion, in this
respect following Wigmore’s view of the common law. 6 Wigmore § 1849. Cf.
McCormick § 152, p. 320, n. 29, listing unfair surprise as a ground for
exclusion but stating that it is usually "coupled with the danger of prejudice
and confusion of issues." While Uniform Rule 45 incorporates surprise as a
ground and is following Kansas Code of Civil Procedure § 60-445, surprise is not
included in California Evidence Code § 352 or New Jersey Rule 4, though both the
latter otherwise substantially embody Uniform Rule 45. While it can scarcely be
doubted that claims of unfair surprise may still be justified despite procedure
requirements or notice and instrumentalities of discovery, the granting of a
continuance is a more appropriate remedy than exclusion of the evidence.
Tentative Recommendation and a Study Relating to the Uniform rules of Evidence
(Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm’n,
Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a rule excluding
evidence on the ground of surprise would be difficult to estimate.

In reaching a decision whether to exclude on grounds of unfair prejudice,
consideration should be given to the probably effectiveness of lack of
effectiveness of a limiting instruction. See Rule l06 [105] and Advisory
Committee’s Note thereunder. The availability of other means of proof may also
be an appropriate factor.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
with the second sentence of subdivision 9b) amended by substituting "It may,
however, be admissible" in place of "This subdivision does not exclude the
evidence when offered."

Advisory Committee's Note to 2006 Amendment

The Rule has been amended to clarify that in a
civil case evidence of a person's character is never admissible to prove that
the person acted in conformity with the character trait. The amendment resolves
the dispute in the case law over whether the exceptions in subdivisions (a)(1)
and (2) permit the circumstantial use of character evidence in civil cases.
Compare Carson v. Polley, 689 F.2d 562, 576 (5th Cir. 1982)("when a central
issue in a case is close to one of a criminal nature, the exceptions to the Rule
404(a) ban on character evidence may be invoked") with SEC v. Towers
Financial Corp., 966 F. Supp. 203 (S.D.N.Y. 1997)(relying on the terms
"accused" and "prosecution" in Rule 404(a) to conclude that the exceptions in
subdivisions (a)(1) and (2) are inapplicable in civil cases). The amendment is
consistent with the original intent of the Rule, which was to prohibit the
circumstantial use of character evidence in civil cases, even where closely
related to criminal charges. See Ginter v. Northwestern Mut. Life Ins. Co.,
576 F. Supp. 627, 629-30 (D. Ky. 1984)("It seems beyond peradventure of doubt
that the drafters of F. R. Evid. 404(a) explicitly intended that all character
evidence, except where 'character is at issue' was to be excluded" in civil
cases).

The circumstantial use of character evidence is
generally discouraged because it carries serious risks of prejudice, confusion
and delay. See Michelson v. United States, 335 U.S. 469, 476 (1948)("The
overriding policy of excluding such evidence, despite its admitted probative
value, is the practical experience that its disallowance tends to prevent
confusion of issues, unfair surprise and undue prejudice."). In criminal cases,
the so-called "mercy rule" permits a criminal defendant to introduce evidence of
pertinent character traits of the defendant and the victim. But that is because
the accused, whose liberty is at stake, may need "a counterweight against the
strong investigative and prosecutorial resources of the Government."
C. Mueller & L. Kirkpatrick, Evidence:
Practice Under the Rules, pp. 264-65 (2d ed. 1999). See also
Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic,
and Injustice in the Courtroom, 130 U. Pa. L. Rev. 845, 855 (1982)(the rule
prohibiting circumstantial use of character evidence "was relaxed to allow the
criminal defendant with so much at stake and so little available in the way of
conventional proof to have special dispensation to tell the factfinder just what
sort of person he really is"). Those concerns do not apply to parties in civil
cases.

The amendment also clarifies that evidence
otherwise admissible under Rule 404(a)(2) may nonetheless be excluded in a
criminal case involving sexual misconduct. In such a case, the admissibility of
evidence of the victim's sexual behavior and predisposition is governed by the
more stringent provisions of Rule 412.

Nothing in the amendment is intended to affect
the scope of Rule 404(b). While Rule 404(b) refers to the "accused," the
"prosecution" and a "criminal case," it does so only in the context of a notice
requirement. The admissibility standards of Rule 404(b) remain fully applicable
to both civil and criminal cases.

Advisory Committee’s Note to 2000 Amendment

Rule 404(a)(1) has been amended to provide that when the accused attacks the
character of an alleged victim under subdivision (a)(2) of this Rule, the door
is opened to an attack on the same character trait of the accused. Current law
does not allow the government to introduce negative character evidence as to the
accused unless the accused introduces evidence of good character. See, e.g.
United States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (when the accused
offers proof of self-defense, this permits proof of the alleged victim’s
character trait for peacefulness, but it does not permit proof of the accused’s
character trait for violence).

The amendment makes clear that the accused cannot attack the alleged victim’s
character and yet remain shielded from the disclosure of equally relevant
evidence concerning the same character trait of the accused. For example, in a
murder case with a claim of self-defense, the accused, to bolster this defense,
might offer evidence of the alleged victim’s violent disposition. If the
government has evidence that the accused has a violent character, but is not
allowed to offer this evidence as part of its rebuttal, the jury has only part
of the information it needs for an informed assessment of the probabilities as
to who was the initial aggressor. This may be the case even if evidence of the
accused’s prior violent acts is admitted under Rule 404(b), because such
evidence can be admitted only for limited purposes and not to show action in
conformity with the accused’s character on a specific occasion. Thus, the
amendment is designed to permit a more balanced presentation of character
evidence when an accused chooses to attack the character of the alleged victim.

The amendment does not affect the admissibility of evidence of specific acts
of uncharged misconduct offered for a purpose other than proving character under
Rule 404(b). Nor does it affect the standards for proof of character by evidence
of other sexual behavior or sexual offenses under Rules 412-415. By its
placement in Rule 404(a)(1), the amendment covers only proof of character by way
of reputation or opinion.

The amendment does not permit proof of the accused’s character if the accused
merely uses character evidence for a purpose other than to prove the alleged
victim’s propensity to act in a certain way. See United States v. Burks,
470 F.2d 432, 434-5 (D.C. Cir. 1972) (evidence of the alleged victim’s violent
character, when known by the accused, was admissible "on the issue of whether or
not the defendant reasonably feared he was in danger of imminent great bodily
harm"). Finally, the amendment does not permit proof of the accused’s character
when the accused attacks the alleged victim’s character as a witness under Rule
608 or 609.

The term "alleged" is inserted before each reference to "victim" in the Rule,
in order to provide consistency with Evidence Rule 412.

Advisory Committee’s Note to 1991 Amendment

Rule 404(b) has emerged as one of the most cited Rules in the Rules of
Evidence. And in many criminal cases evidence of the accused’s extrinsic acts is
viewed as an important asset in the prosecution’s case against an accused.
Although there are a few reported decisions on use of such evidence by the
defense, see, e.g., United States v. McClure, 546 F.2d 670 (5th Cir. 1990) (acts
of informant offered in entrapment defense), the overwhelming number of cases
involve introduction of that evidence by the prosecution.

The amendment to Rule 404(b) adds a pretrial notice requirement in criminal
cases and is intended to reduce surprise and promote early resolution on the
issue of admissibility. The notice requirement thus places Rule 404(b) in the
mainstream with notice and disclosure provisions in other rules of evidence.
See, e.g., Rule 412 (written motion of intent to offer evidence under rule),
Rule 609 (written notice of intent to offer conviction older than 10 years),
Rule 803(24) and 804(b)(5) (notice of intent to use residual hearsay
exceptions)[these Rules are now combined as Rule 807].

The Rule expects that counsel for both the defense and the prosecution will
submit the necessary request and information in a reasonable and timely fashion.
Other than requiring pretrial notice, no specific time limits are stated in
recognition that what constitutes a reasonable request or disclosure will depend
largely on the circumstances of each case. Compare Fla. Stat. Ann[.]
§ 90.404(2)(b) (notice must be given at least ten days before trial) with Tex.
R. Evid. 404(b) (no time limit).

Likewise, no specific form of notice is required. The Committee considered
and rejected a requirement that the notice satisfy the particularity
requirements normally required of language used in a charging instrument. Cf.
Fla. Stat. Ann. § 90.404(2)(b) (written disclosure must describe uncharged
misconduct with particularity requirement of an indictment or information).
Instead, the Committee opted for a generalized notice provision which requires
the prosecution to apprise the defense of the general nature of the evidence of
extrinsic acts. The Committee does not intend that the amendment will supercede
[sic] other rules of admissibility or disclosure, such as the Jencks Act, 18
U.S.C. § 3500, et seq. nor require the prosecution to disclose directly or
indirectly the names and addresses of its witnesses, something it is currently
not required to do under Federal Rule of Criminal Procedure 16.

The amendment requires the prosecution to provide notice, regardless of how
it intends to use the extrinsic act of evidence at trial, i.e., during its
case-in-chief, for impeachment, or for possible rebuttal. The court in its
discretion may, under the facts, decide that the particular notice or request
was not reasonable, either because of the lack of timeliness or completeness.
Because the notice requirement serves as [a] condition precedent to
admissibility of 404(b) evidence, the offered evidence is inadmissible if the
court decides that the notice requirement has not been met.

Nothing in the amendment precludes the court from requiring the government to
provide it with an opportunity to rule in limine on 404(b) evidence before it is
offered or even mentioned during trial. When ruling in limine, the court may
require the government to disclose to it the specifics of such evidence which
the court must consider in determining admissibility.

The amendment does not extend to evidence of acts which are "intrinsic" to
the charged offense, see United States v. Williams, 900 F.2d 823 95th Cir. 1990)
(noting distinction between 404(b) evidence and intrinsic offense evidence). Nor
is the amendment intended to redefine what evidence would otherwise be
admissible under Rule 404(b). Finally, the Committee does not intend through the
amendment to affect the role of the court and the jury in considering such
evidence. See Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L.
Ed. 2d 771 (1988).

Advisory Committee’s Note

Subdivision (a). This subdivision deals with the basic question whether
character evidence should be admitted. Once the admissibility of character
evidence in some form is established under this rule, reference must then be
made to Rule 405, which follows, in order to determine the appropriate method of
proof. If the character is that of a witness, see Rules 608 and 609 for methods
of proof.

Character questions arise in two fundamentally different ways. (1) Character
may itself be an element of a crime, claim, or defense. A situation of this kind
is commonly referred to as "character in issue." Illustrations are: the chastity
of the victim under a statute specifying her chastity as an element of the crime
of seduction, or the competency of the driver in an action for negligently
entrusting a motor vehicle to an incompetent driver. No problem of the general
relevancy of character evidence is involved, and the present rule therefore has
no provision on the subject. The only question relates to allowable methods of
proof, as to which see Rule 405, immediately following. (2) Character evidence
is susceptible of being used for the purpose of suggesting an inference that the
use of character is often described as "circumstantial." Illustrations are:
evidence of a violent disposition to prove that the person was the aggressor in
an affray, or evidence of honesty in disproof of a charge of theft. This
circumstantial use of character evidence raises questions of relevancy as well
as questions of allowable methods of proof.

Is most jurisdictions today, the circumstantial use of character is rejected
but with important exceptions: (1) an accused may introduce pertinent evidence
of good character (often misleadingly described as "putting his character in
issue"), in which event the prosecution may rebut with evidence of bad
character; (2) an accused may introduce pertinent evidence of the character of
the victim, as in support of a claim of self-defense to a charge of homicide or
consent in a case of rape, and the prosecution may introduce similar evidence in
rebuttal of the character evidence, or, in a homicide case, to rebut a claim
that deceased was the first aggressor, however proved; and (3) the character of
a witness may be gone into as bearing on his credibility. McCormick §§ 155-161.
This pattern is incorporated in the rule. While its basis lies more in history
and experience than in logic an underlying justification can fairly be found in
terms of the relative presence and absence prejudice in the various situations.
Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev.574, 584
(1956); McCormick § 157. In any event, the criminal rule is so deeply imbedded
in our jurisprudence as to assume almost constitutional proportions and to
override doubts of the basic relevancy of this evidence.

The limitation to pertinent traits of character, rather than character
generally, in paragraphs (1) and (2) is in accordance with the prevailing view.
McCormick § 158, p. 334. A similar provision in Rule 608, to which reference is
made in paragraph (3), limits character evidence respecting witnesses to the
trait of truthfulness or untruthfulness.

The argument is made that circumstantial use of character ought to be allowed
in civil cases to the same extent as in criminal cases, i.e., evidence of good (nonprejudicial)
character would be admissible in the first instance, subject to rebuttal by
evidence of bad character. Falknor, Extrinsic Policies Affecting Admissibility,
10 Rutgers L. Rev. 574, 581-583 (1956); Tentative Recommendation and a Study
Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting
Admissibility), Cal. Law Revision Comm’n, Rep., Rec. & Studies, 657-658 (1964).
Uniform Rule 47 goes farther, in that it assumes that character evidence in
general satisfies the conditions of relevancy, except as provided in Uniform
Rule 48. The difficulty with expanding the use of character evidence in civil
cases is set forth by the California Law Revision Commission in its ultimate
rejection of Uniform Rule 47, id., 615:

"Character evidence is of slight probative value and may be very
prejudicial. It tends to distract the trier of fact from the main question
of what actually happened on the particular occasion. It subtly permits the
trier of fact to reward the good man and to punish the bad man because of
their respective characters despite what the evidence in the case shows
actually happened."

Much of the force of the position of those favoring greater use of character
evidence in civil cases is dissipated by their support of Uniform Rule 48 which
excludes the evidence in negligence cases, where it could be expected to achieve
its maximum usefulness. Moreover expanding concepts of "character," which seem
of necessity to extend into such areas as psychiatric evaluation and
psychological testing, coupled with expanded admissibility, would open up such
vistas of mental examinations as caused the Court concern in Schlagenhauf v.
Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964). It is believed
that those espousing change have not met the burden of persuasion.

Subdivision (b) deals with a specialized but important application of the
general rule excluding circumstantial use of character evidence. Consistently
with that rule, evidence of other crimes, wrongs, or acts is not admissible to
prove character as a basis for suggesting the inference that conduct on a
particular occasion was in conformity with it. However, the evidence may be
offered for another purpose, such as proof of motive, opportunity, and so on,
which does not fall within the prohibition. In this situation the rule does not
require that the evidence be excluded. No mechanical solution is offered. The
determination must be made whether the danger of undue prejudice outweighs the
probative value of the evidence in view of the availability of other means of
proof and other facts appropriate for making decisions of this kind under Rule
403. Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325 (1956).

Report of the House Committee on the Judiciary

The second sentence of Rule 404(b) as submitted to the Congress began with
the words "This subdivision does not exclude the evidence when offered." The
Committee amended this language to read "It may, however, be admissible," the
words used in the 1971 Advisory Committee draft, on the ground that this
formulation properly placed greater emphasis on admissibility than did the final
Court version.

Report of Senate Committee on the Judiciary

This rule provides that evidence of other crimes, wrongs, or acts is not
admissible to prove character but may be admissible for other specified purposes
such as proof of motive.

Although your committee sees no necessity in amending the rule itself, it
anticipates that the use of the discretionary word "may" with respect to the
admissibility of evidence of crimes, wrongs, or acts is not intended to confer
any arbitrary discretion on the trial judge. Rather, it is anticipated that with
respect to permissible uses for such evidence, the trial judge may exclude it
only on the basis of those considerations set forth in Rule 403, i.e.,
prejudice, confusion or waste of time.

The rule deals only with allowable methods of proving character, not with the
admissibility of character evidence, which is covered in Rule 404.

Of the three methods of proving character provided by the rule, evidence of
specific instances of conduct is the most convincing. At the same time it
possesses the greatest capacity to arouse prejudice, to confuse, to surprise,
and to consume time. Consequently the rule confines the use of evidence of this
kind to cases in which character is, in the strict sense, in issue and hence
deserving of a searching inquiry. When character is used circumstantially and
hence occupies a lesser status in the case, proof may be only by reputation and
opinion. These latter methods are also available when character is in issue.
This treatment is, with respect to specific instances of conduct and reputation,
conventional contemporary common law doctrine. McCormiick § 153.

In recognizing opinion as a means of proving character, the rule departs from
usual contemporary practice in favor of that of an earlier day. See 7 Wigmore
§ 1986, pointing out that the earlier practice permitted opinion and arguing
strongly for evidence based on personal knowledge and belief as contrasted with
"the secondhand, irresponsible product of multiplied guesses and gossip which we
term ‘reputation’." It seems likely that the persistence of reputation evidence
is due to its largely being opinion in disguise. Traditionally character has
been regarded primarily in moral overtones of good and bad: chaste, peaceable,
truthful, honest. Nevertheless on occasion nonmoral considerations crop up, as
in the case of the incompetent driver, and this seems bound to happen
increasingly. If character is defined as the kind of person one is, then account
must be taken of varying ways of arriving at the estimate. These may range from
the opinion of the employer who has found the man honest to the opinion of the
psychiatrist based upon examination and testing. No effective dividing line
exists between character and mental capacity, and the latter traditionally has
been provable by opinion.

According to the great majority of cases, on cross-examination inquiry is
allowable as to whether the reputation witness has heard of particular instances
of conduct pertinent to the trait in question. Michelson v. United States, 335
U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948); Annot., 47 A.L.R. 2d 1258. The
theory is that, since the reputation witness relates what he has heard, the
inquiry tends to shed light on the accuracy of his hearing and reporting.
Accordingly, the opinion witness would be asked whether he knew, as well as
whether he had heard. The fact is, of course, that these distinctions are of
slight if any practical significance, and the second sentence of subdivision (a)
eliminates them as a factor in formulating questions. This recognition of the
propriety of inquiring into specific instances of conduct does not circumscribe
inquiry otherwise into the bases of opinion and reputation testimony.

The express allowance of inquiry into specific instances of conduct on
cross-examination in subdivision (a) and the express allowance of its as part of
a case in chief when character is actually in issue in subdivision (b)
contemplate that testimony of specific instances is not generally permissible on
the direct examination of an ordinary opinion witness to character. Similarly as
to witnesses to the character of witnesses under Rule 608(b). Opinion testimony
on direct in these situations ought in general to correspond to reputation
testimony as now given, i.e., be confined to the nature and extent of
observation and acquaintance upon which the opinion is based. See Rule 701.

"Character and habit are close akin. Character is a generalized
description of one’s disposition, or of one’s disposition in respect to a
general trait, such as honesty, temperance, or peacefulness. ‘Habit,’ in
modern usage, both lay and psychological, is more specific. It describes
one’s regular response to a repeated specific situation. If we speak of
character for care, we think of the person’s tendency to act prudently in
all the varying situations of life, in business, family life, in handling
automobiles and in walking across the street. A habit, on the other hand, is
the person’s regular practice of meeting a particular kind of situation with
a specific type of conduct, such as the habit of going down a particular
stairway two stairs at a time, or of giving the hand-signal for a left turn,
or of alighting from railway cars while they are moving.

The doing of the habitual acts may become semi-automatic."

Equivalent behavior on the part of a group is designated "routine practice of
an organization" in the rule.

Agreement is general that habit evidence is highly persuasive as proof of
conduct on a particular occasion. Again quoting McCormick § 162, p. 341:

"Character may be thought of as the sum of one’s habits though doubtless
it is more than this. But unquestionably the uniformity of one’s response to
habit is far greater than the consistency with which one’s conduct conforms
to character or disposition. Even though character comes in only
exceptionally as evidence of an act, surely any sensible man in
investigating whether X did a particular act would be greatly helped in his
inquiry by evidence as to whether he was in the habit of doing it."

When disagreement has appeared, its focus has been upon the question what
constitutes habit, and the reason for this is readily apparent. The extent to
which instances must be multiplied and consistency of behavior maintained in
order to rise to the status of habit inevitably gives rise to differences of
opinion. Lewan, Rationale of Habit Evidence, 16 Syracuse L. Rev. 39, 49 (1964).
While adequacy of sampling and uniformity of response are two key factors,
precise standards for measuring their sufficiency for evidence purposes cannot
be formulated.

The rule is consistent with prevailing views. Much evidence is excluded
simply because of failure to achieve the status of habit. Thus, evidence of
intemperate "habits" is generally excluded when offered as proof of drunkenness
in accident cases, Annot., 46 A.L.R. 2d 103, and evidence of other assaults is
inadmissible to prove the instant one in a civil assault action, Annot., 66
A.L.R. 2d 806. In Levin v. United States, 119 U. S. App. D.C. 156, 338 F.2d 265
(1964), testimony as to the religious "habits" of the accused, offered as
tending to prove that he was at home observing the Sabbath rather than out
obtaining money through larceny by trick, was held properly excluded.

"It seems apparent to us that an individual’s religious practices would not
be the type of activities which would lend themselves to the characterization of
‘invariable regularity.’ [1 Wigmore 520.] Certainly the very volitional basis of
the activity raises serious questions as to its invariable nature, and hence its
probative value." Id. at 272.

These rulings are not inconsistent with the trend towards admitting evidence
of business transactions between one of the parties and a third person as
tending to prove that he made the same bargain or proposal in the litigated
situation. Slough, Relevancy Unraveled, 6 Kan. L. Rev. 38-41 (1957). Nor are
they inconsistent with such cases as Whittemore v. Lockheed Aircraft Corp., 65
Cal. App. 2d 737, 151 P.2d 670 (1944), upholding the admission of evidence that
plaintiff’s intestate had on four other occasions flown planes from defendant’s
factory for delivery to his employer airline, offered to prove that he was
piloting rather than a guest on a plane which crashed and killed all on board
while en route for delivery.

A considerable body of authority has required that evidence of the routine
practice of an organization be corroborated as a condition precedent to its
admission in evidence. Slough, Relevancy Unraveled, 5 Kan. L. rev. 404, 449
(1957). This requirements is specifically rejected by the rule on the ground
that it relates to the sufficiency of the evidence rather than admissibility. A
similar position is taken in New Jersey Rule 49. The rule also rejects the
requirement of the absence of eyewitnesses, sometimes encountered with respect
to admitting habit evidence to prove freedom from contributory negligence in
wrongful death cases. For comment critical of the requirements see Frank, J., in
Cereste v. New York, N.H. & H.R. Co., 231 F.2d 50 (2d Cir. 1956), cert. denied,
351 U.S. 951, 76 S. Ct. 848, 100 L. Ed. 1475, 10 Vand. L. Rev. 447 (1956);
McCormick § 162, p. 342. The omission of the requirement from the California
Evidence Code is said to have effected its elimination. Comment, Cal. Evid. Code
§ 1105.

Report of House Committee on the Judiciary

Rule 406 as submitted to Congress contained a subdivision (b) providing that
the method of proof of habit or routine practice could be "in the form of an
opinion or by specific instances of conduct sufficient in number to warrant a
finding that the habit existed or that the practice was routine." The Committee
deleted this subdivision believing that the method of proof of habit and routine
practice should be left to the courts to deal with on a case-by-case basis. At
the same time, the Committee does not intend that its action be construed as
sanctioning a general authorization of opinion evidence in this area.

The amendment to Rule 407 makes two changes in the rule. First, the words "an
injury or harm allegedly caused by" were added to clarify that the rule applies
only to changes made after the occurrence that produced the damages giving rise
to the action. Evidence of measures taken by the defendant prior to the "event"
do not fall within the exclusionary scope of Rule 407 even if they occurred
after the manufacture or design of the product. See Chase v. General Motors
Corp., 856 F.2d 17, 21-22 (4th Cir. 1988).

Although this amendment adopts a uniform rule, it should be noted that
evidence of subsequent remedial measures may be admissible pursuant to the
second sentence of Rule 407. Evidence of subsequent measures that is not barred
by Rule 407 may still be subject to exclusion on Rule 403 grounds when the
dangers of prejudice or confusion substantially outweigh the probative value of
the evidence.

Advisory Committee’s Note

The rule incorporates conventional doctrine which excludes evidence of
subsequent remedial measures as proof of an admission of fault. The rule rests
on two grounds. (1) The conduct is not in fact an admission, since the conduct
is equally consistent with injury by mere accident or through contributory
negligence. Or, as Baron Bramwell puts it, the rule rejects the notion that
"because the world gets wiser as its gets older, therefore it was foolish
before." Hart v. Lancashire & Yorkshire Ry. Co., 21 L. T. R. N. S. 261, 263
(1869). Under a liberal theory of relevancy this ground alone would not support
exclusion as the inference is still a possible one. (2) The other, and more
impressive, ground for exclusion rests on a social policy of encouraging people
to take, or at least not discouraging them from taking, steps in furtherance of
added safety. The courts have applied this principle to exclude evidence of
subsequent repairs, installation of safety devices, changes in company rules,
and discharge of employees, and the language of the present rule is broad enough
to encompass all of them. See Falknor, Extrinsic Policies Affecting
Admissibility, 10 Rutgers L. Rev. 574, 590 (1956).

The second sentence of the rule directs attention to the limitations of the
rule. Exclusion is called for only when the evidence of subsequent remedial
measures is offered as proof of negligence or culpable conduct. In effect it
rejects the suggested inference that fault is admitted. Other purposes are,
however, allowable, including ownership or control, existence of duty, and
feasibility of precautionary measures, if controverted, and impeachment. 2
Wigmore § 283; Annot., 64 A.L.R. 2d 12996. Two recent federal cases are
illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961), an
action against an airplane manufacturer for using an allegedly defectively
designed alternator shaft which caused a plane crash, upheld the admission of
evidence of subsequent design modification for the purpose of showing that
design changes and safeguards were feasible. And Powers v. J.B. Michael & Co.,
329 F.2d 674 (6th Cir. 1964), an action against a road contractor for negligent
failure to put out warning signs, sustained the admission of evidence that
defendant subsequently put out signs to show that the portion of the road in
question was under defendant’s control. The requirement that the other purpose
be controverted calls for automatic exclusion unless a genuine issue be present
and allows the opposing party to lay the groundwork for exclusion by making an
admission. Otherwise the factors of undue prejudice, confusion of issues,
misleading the jury, and waste of time remain for consideration under Rule 403.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by the insertion of the third sentence. Other amendments, proposed by
the House bill, were not enacted, for reasons stated in the Report of the Senate
Committee on the Judiciary and in the Conference Report, set forth below.

Advisory Committee's Note to 2006 Amendment

Rule 408 has been amended to settle some
questions in the courts about the scope of the Rule, and to make it easier to
read. First, the amendment provides that Rule 408 does not prohibit the
introduction in a criminal case of statements or conduct during compromise
negotiations regarding a civil dispute by a government regulatory,
investigative, or enforcement agency. See, e.g., United States v. Prewitt,
34 F.3d 436, 439 (7th Cir. 1994)(admissions of fault made in compromise of a
civil securities enforcement action were admissible against the accused in a
subsequent criminal action for mail fraud). Where an individual makes a
statement in the presence of government agents, its subsequent admission in a
criminal case should not be unexpected. The individual can seek to protect
against subsequent disclosure through negotiation and agreement with the civil
regulator or an attorney for the government.

Statements made in compromise negotiations of a
claim by a government agency may be excluded in criminal cases where the
circumstances so warrant under Rule 403. For example, if an individual was
unrepresented at the time the statement was made in a civil enforcement
proceeding, its probative value in a subsequent criminal case may be minimal.
But there is no absolute exclusion imposed by Rule 408.

In contrast, statements made during compromise
negotiations of other disputed claims are not admissible in subsequent criminal
litigation, when offered to prove liability of, or amount of those claims. When
private parties enter into compromise negotiations they cannot protect against
the subsequent use of statements in criminal cases by way of private ordering.
The inability to guarantee protection against subsequent use could lead to
parties refusing to admit fault, even if by doing so they could favorably settle
the private matter. Such a chill on settlement negotiations would be contrary to
the policy of Rule 408.

The amendment distinguishes statements and
conduct (such as a direct admission of fault) made in compromise negotiations of
a civil claim by a government agency from an offer or acceptance of a compromise
of such a claim. An offer or acceptance of a compromise of any civil claim is
excluded under the Rule if offered against the defendant as an admission of
fault. In that case, the predicate for the evidence would be that the defendant,
by compromising with the government agency, has admitted the validity and amount
of the civil claim, and that this admission has sufficient probative value to be
considered as evidence of guilt. But unlike a direct statement of fault, an
offer or acceptance of a compromise is not very probative of the defendant's
guilt. Moreover, admitting such an offer or acceptance could deter a defendant
from settling a civil regulatory action, for fear of evidentiary use in a
subsequent criminal action. See, e.g.,
Fishman, Jones on Evidence, Civil and
Criminal, § 22.16 at 199, n.83 (7th ed. 2000)("A target of a potential
criminal investigation may be unwilling to settle civil claims against him if by
doing so he increases the risk of prosecution and conviction.").

The amendment retains the language of the
original rule that bars compromise evidence only when offered as evidence of the
"validity," "invalidity," or "amount" of the disputed claim. The intent is to
retain the extensive case law finding Rule 408 inapplicable when compromise
evidence is offered for a purpose other than to prove the validity, invalidity,
or amount of a disputed claim. See, e.g., Athey v. Farmers Ins.
Exchange, 234 F.3d 357 (8th Cir. 2000)(evidence of settlement offer by
insurer was properly admitted to prove insurer's bad faith); Coakley &
Williams v. Structural Concrete Equip., 973 F.2d 349 (4th Cir.
1992)(evidence of settlement is not precluded by Rule 408 where offered to prove
a party's intent with respect to the scope of a release); Cates v. Morgan
Portable Bldg. Corp., 708 F.2d 683 (7th Cir. 1985)(Rule 408 does not bar
evidence of a settlement when offered to prove a breach of the settlement
agreement, as the purpose of the evidence is to prove the fact of settlement as
opposed to the validity or amount of the underlying claim); Uforma/Shelby
Bus. Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir. 1997)(threats made in
settlement negotiations were admissible; Rule 408 is inapplicable when the claim
is based upon a wrong that is committed during the course of settlement
negotiations). So for example, Rule 408 is inapplicable if offered to show that
a party made fraudulent statements in order to settle a litigation.

The amendment does not affect the case law
providing that Rule 408 is inapplicable when evidence of the compromise is
offered to prove notice. See, e.g., United States v. Austin, 54 F.3d 394
(7th Cir. 1995)(no error to admit evidence of the defendant's settlement with
the FTC, because it was offered to prove that the defendant was on notice that
subsequent similar conduct was wrongful); Spell v. McDaniel, 824 F.2d
1380 (4th Cir. 1987)(in a civil rights action alleging that an officer used
excessive force, a prior settlement by the City of another brutality claim was
properly admitted to prove that the City was on notice of aggressive behavior by
police officers).

The amendment prohibits the use of statements
made in settlement negotiations when offered to impeach by prior inconsistent
statement or through contradiction. Such broad impeachment would tend to swallow
the exclusionary rule and would impair the public policy of promoting
settlements. SeeMcCormick on
Evidence at 186 (5th ed. 1999)("Use of statements made in compromise
negotiations to impeach the testimony of a party, which is not specifically
treated in Rule 408, is fraught with danger of misuse of the statements to prove
liability, threatens frank interchange of information during negotiations, and
generally should not be permitted."). See also EEOC v. Gear Petroleum, Inc.,
948 F.2d 1542 (10th Cir. 1991)(letter sent as part of settlement negotiation
cannot be used to impeach defense witnesses by way of contradiction or prior
inconsistent statement; such broad impeachment would undermine the policy of
encouraging uninhibited settlement negotiations).

The amendment makes clear that Rule 408
excludes compromise evidence even when a party seeks to admit its own settlement
offer or statements made in settlement negotiations. If a party were to reveal
its own statement or offer, this could itself reveal the fact that the adversary
entered into settlement negotiations. The protections of Rule 408 cannot be
waived unilaterally because the Rule, by definition, protects both parties from
having the fact of negotiation disclosed to the jury. Moreover, proof of
statements and offers made in settlement would often have to be made through the
testimony of attorneys, leading to the risks and costs of disqualification.
See generally Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir.
1992)(settlement offers are excluded under Rule 408 even if it is the offeror
who seeks to admit them; noting that the "widespread admissibility of the
substance of settlement offers could bring with it a rash of motions for
disqualification of a party's chosen counsel who would likely become a witness
at trial").

The sentence of the Rule referring to evidence
"otherwise discoverable" has been deleted as superfluous. See, e.g.,
Advisory Committee Note to Maine Rule of Evidence 408 (refusing to include the
sentence in the Maine version of Rule 408 and noting that the sentence "seems to
state what the law would be if it were omitted"); Advisory Committee Note to
Wyoming Rule of Evidence 408 (refusing to include the sentence in Wyoming Rule
408 on the ground that it was "superfluous"). The intent of the sentence was to
prevent a party from trying to immunize admissible information, such as a
pre-existing document, through the pretense of disclosing it during compromise
negotiations. See Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th
Cir. 1981). But even without the sentence, the Rule cannot be read to protect
pre-existing information simply because it was presented to the adversary in
compromise negotiations.

Advisory Committee’s Note

As a matter of general agreement, evidence of an offer to compromise a claim
is not receivable in evidence as an admission of, as the case may be, the
validity or invalidity of the claim. As with evidence of subsequent remedial
measures, dealt with in Rule 407, exclusion may be based on two grounds. (1) The
evidence is irrelevant, since the offer may be motivated by a desire for peace
rather than from any concession of weakness of position. The validity of this
position will vary as the amount of the offer varies in relation to the size of
the claim and may also be influenced other circumstances. (2) A more
consistently impressive ground is promotion of the public policy favoring the
compromise and settlement of disputes. McCormick §§ 76, 251. While the rule is
ordinarily phrased in terms of offers of compromise, it is apparent that a
similar attitude must be taken with respect to completed compromises when
offered against a party thereto. This latter situation will not, of course,
ordinarily occur except when a party to the present litigation has compromised
with a third person.

The same policy underlies the provision of Rule 68 of the Federal Rules of
Civil Procedure that evidence of an unaccepted offer of judgment is not
admissible except in a proceeding to determine costs.

The practical value of the common law rule has been greatly diminished by its
inapplicability to admissions of fact, even though made in the course of
compromise negotiations, unless hypothetical, states to be "without prejudice,"
or so connected with the offer as to be inseparable from it. McCormick § 251,
pp. 540-541. An inevitable effect is to inhibit freedom of communication with
respect to compromise, even among lawyers. Another effect is the generation of
controversy over whether a given statement falls within or without the protected
area. These considerations account for the expansion of the rule herewith to
include evidence of conduct or statements made in compromise negotiations, as
well as the offer or completed compromise itself. For similar provisions see
California Evidence Code §§ 1152, 1154.

The policy considerations which underlie the rule do not come into play when
the effort is to induce a creditor to settle an admittedly due amount for a
lesser sum. McCormick § 251, p. 540. Hence the rule requires that the claim be
disputed as to either validity or amount.

The final sentence of the rule serves to point out some limitations upon its
applicability. Since the rule excludes only when the purpose is proving the
validity or invalidity of the claim or its amount, an offer for another purpose
is not within the rule. The illustrative situations mentioned in the rule are
supported by the authorities. As to proving bias or prejudice of a witness, see
Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.
E. 2d 402 (1952), and negativing a contention of lack of due diligence in
presenting a claim, 4 Wigmore § 1061. An effort to "buy off" the prosecution or
a prosecuting witness in a criminal case is not within the policy of the rule or
exclusion. McCormick § 251, p. 542.

Under existing federal law evidence of conduct and statements made in
compromise negotiations is admissible in subsequent litigation between the
parties. The second sentence of Rule 408 as submitted by the Supreme Court
proposed to reverse that doctrine in the interest of further promoting
nonjudicial settlement of disputes. Some agencies of government expressed the
view that the Court formulation was likely to impede rather than assist efforts
to achieve settlement of disputes. For one thing, it is not always easy to tell
when compromise negotiations begin, and informal dealings end. Also, parties
dealing with government agencies would be reluctant to furnish factual
information at preliminary meetings; they would wait until "compromise
negotiations" began and thus hopefully effect an immunity for themselves with
respect to the evidence supplied. In light of these considerations, the
Committee recast the Rule so that admissions of liability or opinions given
during compromise negotiations continue inadmissible, but evidence of
unqualified factual assertions is admissible. The latter aspect of the Rule is
drafted, however, so as to preserve other possible objections to the
introduction of such evidence. The Committee intends no modification of current
law whereby a party may protect himself from future use of his statements by
couching them in hypothetical conditional form.

Report of the Senate Committee on the Judiciary

This rule as reported makes evidence of settlement or attempted settlement of
a disputed claim inadmissible when offered as an admission of liability or the
amount of liability. The purpose of this rule is to encourage settlements which
would soon be discouraged if such evidence were admissible.

Under present law, in most jurisdictions, statements of fact made during
settlement negotiations, however, are excepted from this ban and are admissible.
The only escape from admissibility of statements of fact made in a settlement
negotiation is if the declarant or his representative expressly states that the
statement is hypothetical in nature or is made without prejudice. Rule 408 as
submitted by the Court reversed that traditional rule. It would have brought
statements of fact within the ban and made them, as well as an offer of
settlement, inadmissible.

The House amended the rule and would continue to make evidence of facts
disclosed during compromise negotiations admissible. It thus reverted to the
traditional rule. The House committee report states that the committee intends
to preserve current law under which a party may protect himself by couching his
statements in hypothetical form. [footnote omitted] The real impact of this
amendment, however, is to deprive the rule of much of its salutary effect. The
exception for factual admissions was believed by the Advisory Committee to
hamper free communication between parties and thus to constitute an
unjustifiable restraint upon efforts to negotiate settlements—the encouragement
of which is the purpose of the rule. Further, by protecting hypothetically
phrased statements, it constituted a rule of preference for the sophisticated
and a trap for the unwary.

Three States which had adopted rules of evidence patterned after the proposed
rules prescribed by the Supreme Court opted for versions of rule 408 identical
with the Supreme Court draft with respect to the inadmissibility of conduct or
statements made in compromise negotiations. [footnote omitted]

For these reasons, the committee has deleted the House amendment and restored
the rule to the version submitted by the Supreme Court with one additional
amendment. This amendment adds a sentence to insure that evidence, such as
documents, is not rendered inadmissible merely because it is presented in the
course of compromise negotiations if the evidence is otherwise discoverable. A
party should not be able to immunize from admissibility documents otherwise
discoverable merely by offering them in a compromise negotiation.

Conference Report

The House bill provides that evidence of admissions of liability or opinions
given during compromise negotiations is not admissible, but that evidence of
facts disclosed during compromise negotiations is not inadmissible by virtue of
having been first disclosed in the compromise negotiations. The Senate amendment
provides that evidence of conduct or statements made in compromise negotiations
is not admissible. The Senate amendment also provides that the rule does not
require the exclusion of any evidence otherwise discoverable merely because it
is presented in the course of compromise negotiations.

The House bill was drafted to meet the objection of executive agencies that
under the rule as proposed by the Supreme Court, a party could present a fact
during compromise negotiations and thereby prevent an opposing party from
offering evidence of that fact at trial even though such evidence was obtained
from independent sources. The Senate amendment expressly precludes this result.

The considerations underlying this rule parallel those underlying Rules 407
and 408, which deal respectively with subsequent remedial measures and offers of
compromise. As stated in Annot., 20 A.L.R. 2d 291, 293:

"[G]enerally, evidence of payment of medical, hospital, or similar
expenses of an injury party by the opposing party, is not admissible, the
reason often given being that such payment or offer is usually made from
humane impulses and not from an admission of liability, and that to hold
otherwise would tend to discourage assistance to the injured person."

Contrary to Rule 408, dealing with offers of compromise, the present rule
does not extend to conduct or statements not a part of the act of furnishing or
offering or promising to pay. This difference in treatment arises from
fundamental differences in nature. Communication is essential if compromises are
to be effected, and consequently broad protection of statements is needed. This
is not so in cases of payments or offers or promises to pay medical expenses,
where factual statements may be expected to be incidental in nature.

[The Supreme Court amended Rule 11(e)(6) of the Rules of Criminal Procedure
in 1980, to which Federal Rules of Evidence 410 corresponds.]

The major objective of the amendment to rule 11(e)(6) transmitted by the
Supreme Court on April 30, 1979 is to describe more precisely, consistent with
the original purpose of the provision, what evidence relating to pleas or plea
discussions is inadmissible. The present language is susceptible to
interpretation which would make it applicable to a wide variety of statements
made under various circumstances other than within the context of those pleas
discussions authorized by rule 11(e) and intended to be protected by
subdivision(e)(6) of the rule. See United States v. Herman, 544 F.2d 791 (5th
Cir. 1977), discussed herein.

Fed.R.Ev. 410, as originally adopted by Pub. L. 93-595, provided in part that
"evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or
of an offer to plead guilty or nolo contendere to the crime charged or any other
crime, or of statements made in connection with any of the foregoing pleas or
offers, is not admissible in any civil or criminal action, case, or proceeding
against the person who made the plea or offer." (This rule was adopted by the
proviso that "shall be superseded by any amendment to the Federal Rules of
Criminal Procedure which is inconsistent with this rule.") As the Advisory
Committee Note explained: "Exclusion of offers to plead guilty or nolo has as
its purpose the promotion of disposition of criminal cases by compromise." The
amendment of Fed. R. Crim. P. 11, transmitted to Congress by the Supreme Court
in April 1974, contained a subdivision (e)(6) essentially identical to the rule
410 language quoted above, as a part of a substantial revision of rule 11. The
most significant feature of this revision was the express recognition given to
the fact that the "attorney for the government and the attorney for the
defendant or the defendant when acting pro se may engage in discussions with a
view toward reaching" a plea agreement. Subdivision (e)(6) was intended to
encourage such discussions. As noted in H. R. Rep. No. 94-414, 94th Cong., 1st
Sess. 10 (1975), states that "Rule 11(e)(6) deals with the use of statements
made in connection with plea agreements." (Rule 11(e)(6) was thereafter enacted,
with the addition of the proviso allowing use of statements for purposes of
impeachment and in a prosecution for perjury, and with the qualification that
the inadmissible statements must also be "relevant to" the inadmissible pleas or
offers. Pub. L. 94-64; Fed. R. Ev. 410 was then amended to conform. Pub. L.
94-149.)

While this history shows that the purpose of Fed.R.Ev. 410 and Fed.R.Crim.P.
11(e)(6) is to permit the unrestrained candor which produces effective plea
discussions between the "attorney for the government and the attorney for the
defendant or the defendant when acting pro se," given visibility and sanction in
rule 11(e), a literal reading of the language of these two rules could
reasonably lead to the conclusion that a broader rule of inadmissibility
obtains. That is, because "statements" are generally inadmissible if "made in
connection with, and relevant to" an "offer to plead guilty," it might be
thought that an otherwise voluntary admission to law enforcement officials is
rendered inadmissible merely because it was made in the hope of obtaining
leniency by a plea. Some decisions interpreting rule 11(e)(6) point in this
direction. See United States v. Herman, 544 F.2d 791 (5th Cir. 1977) (defendant
in custody of two postal inspectors during continuance of removal hearing
instigated conversation with them and at some point said he would plead guilty
to armed robbery if the murder charge was dropped; one inspector stated they
were not "in position" to make any deals in this regard; held, defendant’s
statement inadmissible under rule 11(e)(6) because the defendant "made the
statements during the course of a conversation in which he sought concessions
from the government in return for a guilty plea"); United States v. Brooks, 536
F.2d 1137 (6th Cir. 1976) (defendant telephone postal inspector and offered to
plead guilty if he got 2-year maximum; statement inadmissible).

The amendment makes inadmissible statements made "in the course of any
proceedings under this rule regarding" either a plea of guilty later withdrawn
or a plea of nolo contendere, and also statements "made in the course of plea
discussions with an attorney for the government which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn." It is not limited
to statements by the defendant himself, and thus would cover statements by
defense counsel regarding defendant’s incriminating admissions to him. It thus
fully protects the plea discussion process authorized by rule 11 without
attempting to deal with confrontations between suspects and law enforcement
agents, which involve problems of quite different dimensions. See, e.g., ALI
Model Code of Pre-Arraignment Procedure art 140 and § 150.2(8)(Proposed Official
Draft, 1975) (latter section requires exclusion if "a law enforcement officer
induces any person to make a statement by promising leniency"). This change, it
must be emphasized, does not compel the conclusion that statements made to law
enforcement agents, especially when the agents purport to have authority to
bargain, are inevitably admissible. Rather, the point is that such cases are not
covered by the present rule of 11(e)(6) and thus must be resolved by that body
of law dealing with police interrogations.

If there has been a plea of guilty later withdrawn or a plea of nolo
contendere, subdivision (e)(6)(C) makes inadmissible statements made "in the
course of any proceedings under this rule" regarding such pleas. This includes,
for example, admissions by the defendant when he makes his plea in court
pursuant to rule 11 and also admissions made to provide the factual basis
pursuant to subdivision (f). However, subdivision (e)(6)(C) is not limited to
statements made in court. If the court were to defer its decision on a plea
agreement pending examination of the pre-sentence report, as authorized by
subdivision (e)(2), statements made to the probation officer in connection with
the preparation of that report would come within this provision.

This amendment is fully consistent with all recent and major law reform
efforts on this subject. ALI Model Code of Pre-Arraignment Procedure § 350.7
(Proposed Official Draft, 1975), and ABA Standards Relating to Pleas of Guilty
§ 3.4 (Approved Draft, 1968) both provide:

Unless the defendant subsequently enters a plea of guilty or nolo
contendere which is not withdrawn, the fact that the defendant or his
counsel and the prosecuting attorney engaged in plea discussions or made a
plea agreement should not be received in evidence against or in favor of the
defendant in any criminal or civil action or administrative proceedings.

The Commentary to the latter states:

The above standard is limited to discussions and agreements with the
prosecuting attorney. Sometimes defendants will indicate to the police their
willingness to bargain, and in such instances these statements are sometimes
admitted in court against the defendant. State v. Christian, 245 S. W. 2d
895 (Mo. 1952). If the police initiate this kind of discussion, this may
have some bearing on the admissibility of the defendant’s statement.
However, the policy considerations relevant to this issue are better dealt
with in the context of standards governing in-custody interrogation by the
police.

Similarly, Unif. R. Crim. P. 441(d) (Approved Draft, 1974) provides that
except under limited circumstances "no discussion between the parties or
statement by the defendant or his lawyer under this Rule," i.e., the rule
providing "the parties may meet to discuss the possibility of pretrial diversion
... or of a plea agreement," are admissible. The amendment is likewise
consistent with the typical state provision on this subject; see, e.g., Ill. S.
Ct. Rule 402(f).

The "in the course of or as a consequent of such pleas or plea discussions"
language of the amendment identifies with more precision than the present
language the necessary relationship between the statements and the plea or
discussion. See the dispute between the majority and the concurring opinion in
United States v. Herman, 544 F.2d 791 (5th Cir. 1977), concerning the meanings
and effect of the phrases "connection to" and "relevant to" in the present rule.
Moreover, by relating the statements to "plea discussions" rather than "an offer
to plead," the amendment ensures "that even an attempt to open plea bargaining
[is] covered under the same rule of inadmissibility." United States v. Brooks,
536 F.2d 1137 (6th Cir. 1976).

The last sentence of Rule 11(e)(6) is amended to provide a second exception
to the general rule of nonadmissibility of the described statements. Under the
amendment, such a statement is also admissible "in any proceeding wherein
another statement made in the course of the same plea or plea discussions has
been introduced and the statement ought in fairness be considered
contemporaneously with it." This change is necessary so that, when evidence of
statements made in the course of or as a consequence of a certain plea or plea
discussions are introduced under circumstances not prohibited by this rule
(e.g., not "against" the person who made the plea), other statements relating to
the same plea or plea discussions may also e admitted when relevant to the
matter at issue. For example, if a defendant upon a motion to dismiss a
prosecution on some ground were able to admit certain statements made in aborted
plea discussions in his favor, then other irrelevant statements made in the same
plea discussions should be admissible against the defendant in the interest of
determining the truth of the matter at issue. The language of the amendment
follows closely that in Fed. R. Evid. 106, as the considerations involved are
very similar.

The phrase "in any civil or criminal proceeding" has been moved from its
present position, following the word "against," for purposes of clarity. An
ambiguity presently exists because the word "against" may be read as referring
either to the kind of proceeding in which the evidence is offered or the purpose
for which it is offered. The change makes it clear that the latter construction
is correct. No change is intended with respect to provisions making evidence
rules inapplicable in certain situations. See, e.g., Fed. R. Evid. 104(a) and
1101(d).

Unlike ABA Standards Relating to Pleas of Guilty § 3.4 (Approved Draft,
1968), and ALI Model Code of Pre-Arraignment Procedure § 350.7 (Proposed
Official Draft, 1975), rule 11(e)(6) does not also provide that the described
evidence is inadmissible "in favor of" the defendant. This is not intended to
suggest, however, that such evidence will inevitably be admissible in the
defendant’s favor. Specifically, no disapproval is intended of such decisions as
United States v. Verdoorn, 528 F.2d 103 (8th Cir. 1976), holding that the trial
judge properly refused to permit the defendants to put into evidence at their
trial the fact that prosecution had attempted to plea bargain with them, as
"meaningful dialogue between the parties would, as a practical matter, be
impossible if either party had to assume the risk that plea offers would be
admissible in evidence."

The courts have with substantial unanimity rejected evidence of liability
insurance for the purpose of proving fault, and absence of liability insurance
as proof of lack of fault. At best the inference of fault from the fact of
insurance coverage is a tenuous one, as is its converse. More important, no
doubt, has been the feeling that knowledge of the presence or absence of
liability insurance would induce juries to decide cases on improper grounds.
McCormick § 168; Annot., 4 A.L.R. 2d 761. The rule is drafted in broad terms so
as to include contributory negligence or other fault of a plaintiff as well as
fault of a defendant.

The second sentence points out the limits of the rule, using well established
illustrations. Id.

Rule 412 has been revised to diminish some of the confusion engendered by the
original rule and to expand the protection afforded alleged victims of sexual
misconduct. Rule 412 applied to both civil and criminal proceedings. The rule
aims to safeguard the alleged victim against the invasion of privacy, potential
embarrassment and sexual stereotyping that is associated with public disclosure
of intimate sexual details and the infusion of sexual innuendo into the
factfinding process. By affording victims protection in most instances, the rule
also encourages victims of sexual misconduct to institute and to participate in
legal proceedings against alleged offenders.

Rule 412 seeks to achieve these objectives by barring evidence relating to
the alleged victim’s sexual behavior or alleged sexual predisposition, whether
offered as substantive evidence or for impeachment, except in designated
circumstance in which the probative value of the evidence significantly
outweighs possible harm to the victim.

The revised rule applies in all cases involving sexual misconduct without
regard to whether the alleged victim or person accused is a party to the
litigation. Rule 412 extends to "pattern" witnesses in both criminal and civil
cases whose testimony about other instances of sexual misconduct by the person
accused is otherwise admissible. When the case does not involve alleged sexual
misconduct, evidence relating to a third-party witness’ alleged sexual
activities is not within the ambit of Rule 412. The witness will, however, be
protected by other rules such as Rules 404, and 608, as well as Rule 403.

The terminology "alleged victim" is used because there will frequently be a
factual dispute as to whether sexual misconduct occurred. It does not connote
any requirement that the misconduct be alleged in the pleadings. Rule 412 does
not, however, apply unless the person against whom the evidence is offered can
reasonably be characterized as a "victim of alleged sexual misconduct." When
this is not the case, as for instance in a defamation action involving
statements concerning sexual misconduct in which the evidence is offered to show
that the alleged defamatory statements were true or did not damage the
plaintiff’s reputation, neither Rule 404 nor this rule will operate to bar the
evidence; Rule 401 and 403 will continue to control. Rule 412 will, however,
apply in a Title VII action in which the plaintiff has alleged sexual
harassment.

The reference to a person "accused" is also used in a non-technical sense.
There is no requirement that there be a criminal charge pending against the
person or even that the misconduct would constitute a criminal offense. Evidence
offered to prove allegedly false prior claims by the victim is not barred by
Rule 412. However, the evidence is subject to the requirements of Rule 404.

Subdivision (a). As amended, Rule 412 bars evidence offered to prove the
victim’s sexual behavior and alleged sexual predisposition. Evidence, which
might otherwise be admissible under Rules 402, 404(b), 405, 607, 608, 609 or
some other evidence rule, must be excluded if Rule 412 so requires. The word
"other" is used to suggest some flexibility in admitting evidence "intrinsic" to
the alleged sexual misconduct. Cf. Committee Note to 1991 amendment to Rule
404(b).

Past sexual behavior connotes all activities that involve actual physical
conduct, i.e. sexual intercourse or sexual conduct. See, e.g., United States v.
Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied, 506 U.S. 957, 113 S. Ct.
418, 121 L. Ed. 2d 341 (1992) (use of contraceptives inadmissible since use
implied sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir.
1983) (birth of an illegitimate child inadmissible); State v. Carmichael, 240
Kan. 149, 727 P.2d 918, 925 (1986) (evidence of venereal disease inadmissible).
In addition, the word "behavior" should be constructed to include activities of
the mind, such as fantasies of dreams. See 23 C. Wright and K. Graham, Jr.,
Federal Practice and Procedure, § 5384 at p. 548 (1980) ("While there may be
some doubt under statutes that require ‘conduct,’ it would seem that the
language of Rule 412 is broad enough to encompass the behavior of the mind.").

The rule has been amended to also exclude all other evidence relating to an
alleged victim of sexual misconduct that is offered to prove a sexual
predisposition. This amendment is designed to exclude evidence that does not
directly refer to sexual activities or thoughts but that the proponent believes
may have a sexual connotation for the factfinder. Admission of such evidence
would contravene Rule 412's objectives of shielding the alleged victim from
potential embarrassment and safeguarding the victim against stereotypical
thinking. Consequently, unless the (b)(2) exception is satisfied, evidence such
as that relating to the alleged victim’s mode of dress, speech, or life-style
will not be admissible.

The introductory phrase in subdivision (a) was deleted because it lacked
clarity and contained no explicit reference to the other provisions of the law
that were intended to be overridden. The conditional phrase, "except as provided
in subdivisions (b) and (c)" is intended to make clear that evidence of the
types described in subdivision (a) is admissible only under the strictures of
those sections.

The reason for extending the rule to all criminal cases is obvious. The
strong social policy of protecting a victim’s privacy and encouraging victims to
come forward to report criminal acts is not confined to cases that involve a
charge of sexual assault. The need to protect the victim is equally great when a
defendant is charged with kidnapping, and evidence is offered, either to prove
motive or as background, that the defendant sexually assaulted the victim.

The reason for extending Rule 412 to civil cases is equally obvious. The need
to protect alleged victims against invasions of privacy, potential
embarrassment, and unwarranted sexual stereotyping, and the wish to encourage
victims to come forward when they have been sexually molested do not disappear
because the context has shifted from a criminal prosecution to a claim for
damages or injunctive relief. There is a strong social policy in not only
punishing those who engage in sexual misconduct, but in also providing relief to
the victim. Thus, Rule 412 applied in any civil case in which a person claims to
be the victim of sexual misconduct, such as actions for sexual battery or sexual
harassment.

Subdivision (b). Subdivision (b) spells out the specific circumstances in
which some evidence may be admissible that would otherwise be barred by the
general rule expressed in subdivision (a). As amended, Rule 412 will be
virtually unchanged in criminal cases, but will provide protection to any person
alleged to be a victim of sexual misconduct regardless of the charge actually
brought against an accused. A new exception has been added for civil cases.

In a criminal case, evidence may be admitted under subdivision (b)(1)
pursuant to three possible exceptions, provided the evidence also satisfies
other requirements for admissibility specified in the Federal Rules of Evidence,
including Rule 403. Subdivisions (b)(1)(A) and (b)(1)(B) require proof in the
form of specific instances of sexual behavior in recognition of the limited
probative value and dubious reliability of evidence of reputation or evidence in
the form of an opinion.

Under subdivision (b)(1)(A), evidence of specific instances of sexual
behavior with persons other than the person whose sexual misconduct is alleged
may be admissible if it is offered to prove that another person was the source
of semen, injury or other physical evidence. Where the prosecution has directly
or indirectly asserted that the physical evidence originated with the accused,
the defendant must be afforded an opportunity to prove that another person was
responsible. See United States v. Begay, 937 F.2d 515, 523 n. 10 (10th Cir.
1991). Evidence offered for the specific purpose identified in this subdivision
may still be excluded if it does not satisfy Rules 401 or 403. See, e.g., United
States v. Azure, 845 F.2d 1503, 1505-06 (8th Cir. 1988) (10-year-old victim’s
injuries indicated recent use of force; court excluded evidence of consensual
sexual activities with witness who testified at in camera hearing that he had
never hurt victim and failed to establish recent activities).

Under the exception in subdivision (b)(1)(B), evidence of specific instances
of sexual behavior with respect to the person whose sexual misconduct is alleged
is admissible if offered to prove consent or offered by the prosecution.
Admissible pursuant to this exception might be evidence of prior instances of
sexual activities between the alleged victim and the accused, as well as
statements in which the alleged victim expresses an intent to engage in sexual
intercourse with the accused, or voiced sexual fantasies involving that specific
accused. In a prosecution for child sexual abuse, for example, evidence of
uncharged sexual activity between the accused and the alleged victim offered by
the prosecution may be admissible pursuant to the Rule 404(b) to show a pattern
of behavior. Evidence relating to the victim’s alleged sexual predisposition is
not admissible pursuant to this exception.

Under subdivision (b)(1)(C), evidence of specific instances of conduct may
not excluded if the result would be to deny a criminal defendant the protections
afforded by the Constitution. For example, statements in which the victim has
expressed an intent to have sex with the first person encountered on a
particular occasion might not be excluded without violating the due process
right of a rape defendant seeking to prove consent. Recognition of this basic
principle was expressed in subdivision (b)(1) of the original rule. The United
States Supreme Court has recognized that in various circumstances a defendant
may have a right to introduce evidence otherwise precluded by an evidence rule
under the Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227, 109
S. Ct. 480, 102 L. Ed.2d 513 (1988) (defendant in rape cases had right to
inquire into alleged victim’s cohabitation with another man to show bias).

Subdivision (b)(2) governs the admissibility of otherwise proscribed evidence
in civil cases. It employs a balancing test rather than the specific exceptions
stated in subdivision (b)(1) in recognition of the difficulty of foreseeing
future developments in the law. Greater flexibility is needed to accommodate
evolving causes of action such as claims for sexual harassment.

The balancing test requires the proponent of the evidence, whether plaintiff
or defendant, to convince the court that the probative value of the proffered
evidence "substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party." This test for admitting evidence offered to prove
sexual behavior or sexual propensity in civil cases differs in three respects
from the general rule governing admissibility set forth in Rule 403. First, it
reverses the usual procedure spelled out in Rule 403 by shifting the burden to
the proponent to demonstrate admissibility rather than making the opponent
justify exclusion of the evidence. Second, the standard expressed in subdivision
(b)(2) is more stringent than in the original rule; it raises the threshold for
admission by requiring that the probative value of the evidence substantially
outweigh the specified dangers. Finally, the Rule 412 test puts "harm to the
victim" on the scale in addition to prejudice to the parties.

Evidence of reputation may be received in a civil case only if the alleged
victim has put his or her reputation into controversy. The victim may do so
without making a specific allegation in a pleading. Cf. Fed. R. Civ. P. 35(a).

Subdivision (c). Amended subdivision (c) is more concise and
understandable than the subdivision it replaces. The requirement of a motion
before trial is continued in the amended rule, as is the provision that a late
motion may be permitted for good cause shown. In deciding whether to permit late
filing, the court may take into account the conditions previously included in
the rule: namely whether the evidence is newly discovered and could not have
been obtained earlier through the existence of due diligence, and whether the
issue to which such evidence relates has newly arisen in the case. The rule
recognizes that in some instances the circumstances that justify an application
to introduce evidence otherwise barred by Rule 412 will not become apparent
until trial.

The amended rule provides that before admitting evidence that falls within
the prohibition of Rule 412(a), the court must hold a hearing in camera at which
the alleged victim and any party must be afforded the right to be present and an
opportunity to be heard. All papers connected with the motion must be kept and
remain under seal during the course of trial and appellate proceedings unless
otherwise ordered. This is to assure that the privacy of the alleged victim is
preserved in all cases in which the court rules that proffered evidence is not
admissible, and in which the hearing refers to matters that are not received, or
are received in another form.

The procedures set forth in subdivision (c) do not apply to discovery of a
victim’s past sexual conduct or predisposition in civil cases, which will be
continued to be governed by Fed. R. Civ. P. 26. In order not to undermine the
rationale of Rule 412, however, courts should enter appropriate orders pursuant
to Fed. R. Civ. P. 26(c) to protect the victim against unwarranted inquiries and
to ensure confidentiality. Courts should presumptively issue protective orders
barring discovery unless the party seeking discovery makes a showing that the
evidence sought to be discovered would be relevant under the facts and theories
of the particular case, and cannot be obtained except through discovery. In an
action for sexual harassment, for instance, while some evidence of the alleged
victim’s sexual behavior and/or predisposition in the workplace may perhaps be
relevant, non-work place conduct will usually be irrelevant. Cf. Burns v.
McGregor Electronic Industries, Inc., 939 F.2d 959, 962-63 (8th Cir. 1993)
(posing for a nude magazine outside work hours is irrelevant to issue of
unwelcomeness of sexual advances at work). Confidentiality orders should be
presumptively granted as well.

One substantive change made in subdivision (c) is the elimination of the
following sentence: "Notwithstanding subdivision (b) of Rule 104, if the
relevancy of the evidence which the accused seeks to offer in the trial depends
upon the fulfillment of a condition of fact, the court, at the hearing in
chambers or at a subsequent hearing in chambers schedule for such purpose, shall
accept evidence on the issue of whether such condition of fact is fulfilled and
shall determine such issue." On its face, this language would appear to
authorize a trial judge to exclude evidence of past sexual conduct between
alleged victim and an accused or a defendant in a civil case based upon the
judge’s belief that such past acts did not occur. Such an authorization raises
questions of invasion of the right to a jury trial under the Sixth and Seventh
Amendments. See 1 S. Saltzburg & M. Martin, Federal Rules of Evidence Manual,
396-97 (5th ed. 1990).

The Advisory Committee concluded that the amended rule provided adequate
protection for all persons claiming to be victims of sexual misconduct, and that
it was inadvisable to continue to include a provision in the rule that has been
confusing and that raises substantial constitutional issues.

Congressional Record Concerning Rule 412 (1978)

In the House of Representatives, Representatives Mann, Wiggins and Holtzman
discussed the addition of a rape shield provision at length. The following
excerpts are found in 124 Cong. Record H. 11944-11945, October, 1978.

Mr. MANN. Mr. Speaker, for many years in this country, evidentiary rules
have permitted the introduction of evidence about a rape victim’s prior
sexual conduct. Defense lawyers were permitted great latitude in bringing
out intimate details about a rape victim’s life. Such evidence quite often
serves no real purpose and only results in embarrassment to the rape victim
and unwarranted public intrusion into her private life.

The evidentiary rules that permit such inquiry have in recent years come
under question; and the States have taken the lead to change and modernize
their evidentiary rules about evidence of a rape victim’s prior sexual
behavior. The bill before us similarly seeks to modernize the Federal
evidentiary rules.

The present Federal Rules of Evidence reflect the traditional approach.
If a defendant in a rape case raises the defense of consent, that defendant
may then offer evidence about the victim’s prior sexual behavior. Such
evidence may be in the form of opinion evidence, evidence of reputation, or
evidence of specific instances of behavior. Rule 404(a)(2) of the Federal
Rules of Evidence permits the introduction of evidence of a "pertinent
character trait." The advisory committee note to that rule cites, as an
example of what the rule covers, the character of a rape victim when the
issue is consent. Rule 405 of the Federal Rules of Evidence permits the use
of opinion or reputation evidence or the use of evidence of specific
behavior to show a character trait.

Thus, Federal evidentiary rules permit a wide ranging inquiry into the
private conduct of a rape victim, even though that conduct may have at best
a tenuous connection to the offense for which the defendant is being tried.
H. R. 4727 amends the Federal Rules of Evidence to add a new rule,
applicable only in criminal cases, to spell out when, and under what
conditions, evidence of a rape victim’s prior sexual behavior can be
admitted. The new rule provides that reputation or opinion evidence about a
rape victim’s prior sexual behavior is not admissible. The new rule also
provides that a court cannot admit evidence of specific instances of a rape
victim’s prior sexual conduct except in three circumstances.

The first circumstance is where the Constitution requires that the
evidence be admitted. This exception is intended to cover those infrequent
instances where, because of an unusual chain of circumstances, the general
rule of inadmissibility, if followed, would result in denying the defendant
a constitutional right.

The second circumstance in which the defendant can offer evidence of
specific instances of a rape victim’s prior sexual behavior is where the
defendant raises the issue of consent and the evidence is of sexual behavior
with the defendant. To admit such evidence, however, the court must find
that the evidence is relevant and that its probative value outweighs the
danger of unfair prejudice.

The third circumstance in which a court can admit evidence of specific
instances of a rape victim’s prior sexual behavior is where the evidence is
of behavior with someone other than the defendant and is offered by the
defendant on the issue of whether or not he was the source of semen or
injury. Again, such evidence will be admitted only if the court finds that
the evidence is relevant and that its probative value outweighs the danger
of unfair prejudice.

The new rule further provides that before evidence is admitted under any
of these exceptions, there must be an in camera hearing—that is, a
proceeding that takes place in the judge’s chambers out of the presence of
the jury and the general public. At this hearing, the defendant will present
the evidence he intends to offer and be able to argue why it should be
admitted. The prosecution, of course, will be able to argue against the
evidence being admitted.

The purpose of the in camera hearing is twofold. It gives the defendant
an opportunity to demonstrate to the court why certain evidence is
admissible and ought to be present to the jury. At the same time, it
protects the privacy of the rape victim in those instances when the court
finds that evidence is inadmissible. Of course, if the court finds the
evidence to be admissible, the evidence will be presented to the jury in
open court.

The effect of this legislation, therefore, is to preclude the routine use
of evidence of specific instances of a rape victim’s prior sexual behavior.
Such evidence will be admitted only in clearly and narrowly defined
circumstances and only after an in camera hearing. In determining the
admissibility of such evidence, the court will consider all of the facts and
circumstances surrounding the evidence, such as the amount of time that
lapsed between the alleged prior act and the rape charged in the
prosecution. The greater the lapse of time, of course, the less likely it is
that such evidence will be admitted.

Mr. Speaker, the principal purpose of this legislation is to protect rape
victims from the degrading and embarrassing disclosure of intimate details
about their private lives. It does so by narrowly circumscribing when such
evidence may be admitted. It does not do so, however, by sacrificing any
constitutional right possessed by the defendant. The bill before us fairly
balances the interests involved—the rape victim’s interest in protecting her
private life form unwarranted public exposure; the defendant’s interest in
being able adequately to present a defense by offering relevant and
probative evidence; and society’s interest in a fair trial, one where unduly
prejudicial evidence is not permitted to becloud the issues before the jury.

Mr. WIGGINS. Mr. Speaker, this legislation addresses itself to a subject
that is certainly a proper one for our consideration. Many of us have been
troubled for years about the indiscriminate and prejudicial use of testimony
with respect to a victim’s prior sexual behavior in rape and similar cases.
This bill deals with that problem. It is not, in my opinion, Mr. Speaker, a
perfect bill in the manner in which it deals with the problem, but my
objections are not so fundamental as would lead me to oppose the bill.

I think, Mr. Speaker, that it is unwise to adopt a per se rule absolutely
excluding evidence of reputation and opinion with respect to the victim—and
this bill does that—but it is difficult for me to foresee the specific case
in which such evidence might be admissible. The trouble is this, Mr.
Speaker: None of us can foresee perfectly all of the various circumstances
under which the propriety of evidence might be before the court. If this
bill has a defect, in my view it is because it adopts a per se rule with
respect to opinion and reputation evidence. Alternatively we have permitted
that evidence to be considered in camera as we do other evidence under the
bill.

I should note, however, in fairness, having expressed minor reservations,
that the bill before the House at this time does improve significantly upon
the bill which was presented to our committee.

I will not detail all of those improvements but simply observe that the
bill upon which we shall soon vote is a superior product to that which was
initially considered by our subcommittee.

Ms. HOLTZMAN. Too often in this country victims of rape are humiliated
and harassed when they report and prosecute the rape. Bullied and
cross-examined about their prior sexual experiences, many find the trial
almost as degrading as the rape itself. Since rape trials become
inquisitions into the victim’s morality, not trials of the defendant’s
innocence or guilt, it is not surprising that it is the least reported
crime. It is estimated that as few as one in ten rapes is ever reported.

Mr. Speaker, over 30 States have taken some action to limit the
vulnerability of rape victims to such humiliated cross-examination of their
past sexual experiences and intimate personal histories. In federal courts,
however, it is permissible still to subject rape victims to brutal
cross-examination about their past sexual histories. H. R. 4727 would
rectify this problem in Federal courts and I hope, also serve as a model to
suggest to the remaining states that reform of existing rape laws is
important to the equity of our criminal justice system.

H. R. 4727 applies only to criminal rape cases in Federal courts. The
bill provides that neither the prosecution nor the defense can introduce any
reputation or opinion evidence about the victim’s past sexual conduct. It
does permit, however, the introduction of specific evidence about the
victim’s past sexual conduct in three very limited circumstances.

First, this evidence can be introduced if it deals with the victim’s past
sexual relations with the defendant and is relevant to the issue of whether
she consented. Second, when the defendant claims he had no relations with
the victim, he can use evidence of the victim’s past sexual relations with
others if the evidence rebuts the victim’s claim that the rape caused
certain physical consequences, such as semen or injury. Finally, the
evidence can be introduced if it is constitutionally required. This last
exception, added in subcommittee, will insure that the defendant’s
constitutional rights are protected.

Before any such evidence can be introduced, however, the court must
determine at a hearing in chambers that the evidence falls within one of the
exceptions.

Furthermore, unless constitutionally required, the evidence of specific
instances of prior sexual conduct cannot be introduced at all it would be
more prejudicial and inflammatory than probative.

Senate discussion concerning the rape shield bill follows. It is found at
Cong. Record, October 12, 1978, S18579-S18581.

Mr. THURMOND.

H. R. 4727, as passed by the House, essentially does the following:

First. Prohibits any use of reputation or opinion evidence of the past
sexual behavior of the victim in a criminal prosecution for rape or assault
with intent to commit rape.

Second. Restricts the use of direct evidence of the past sexual behavior
of the victim of rape and assault with intent to commit rape to three
situations:

(a) Where the judge finds after a hearing that admission of the evidence
is required under the Constitution;

(b) The judge finds after a hearing that the past sexual behavior was
with a person other than the accused and is being offered to show that
someone other than the accused was the source of semen or injury; and

(c) The judge finds after a hearing that he past sexual behavior was with
the accused and is offered by the accused solely on the issue of consent.

Third. Creates notice and hearing procedures on the evidentiary issues
delineated by the bill.

Mr. BAYH.

Under the provisions of H. R. 4727, a new rule of evidence applicable
only in criminal cases would make evidence of prior sexual history
inadmissible except under three circumstances.

First, in order to make sure that we are [not] infringing upon a
defendant’s civil liberties, such evidence may be admissible where it is
required under the constitution. This exception is intended to cover those
instances where, because of an unusual set of circumstances, if the general
rule of inadmissibility were to be followed, it might deprive a defendant of
his constitutional rights.

The second circumstance in which the defendant can offer evidence of a
rape victim’s prior sexual history is where the defendant raises the issue
of consent and the evidence is of sexual behavior with the defendant.

The third circumstance in which a court can admit evidence of prior
sexual history is where the evidence may show that sexual relations occurred
between the victim and someone other than the defendant.

Evidence which might fall under these exceptions is not automatically
admissible however. If the defendant proposed to offer evidence in either
category, he must first make a written offer of proof which submitted to the
presiding judge. If the judge then decides after an in camera hearing that
such evidence is admissible, he must make a written order specifically
identifying the evidence to be admitted and describing exactly the areas of
cross-examination permitted. This procedure is designed to afford the victim
maximum notice of the questioning that may occur.

Mr. BIDEN.

[It] is important the we keep in mind the constitutional rights of the
defendant to a fair trial. Therefore this bill has been carefully drafted to
keep the reform within constitutional limits.

The bill clearly permits the defendant to offer evidence where it is
constitutionally required. Indeed, the bill specifically recognizes two
circumstances where the evidence may be admitted. However, the bill also
would establish a special in camera procedure whereby the question of
admissibility could be litigated with harm to the privacy rights of the
victim or the constitutional rights of the defendant.

[Congress adopted Rules 413-15 in 1994, in Pub. L. 103-322,
Title XXXII, § 320935, 108 Stat. 2135, effective July 9, 1995. The Judicial
Conference of the United States disapproved of these Rules and recommended
Congress either reconsider these Rules, or adopt an amendment to Rule 404
embodying the policies of Rules 413-415. Congress retained these Rules. There is
no Advisory Committee Note to this Rule.]

[Congress adopted Rules 413-15 in 1994, in Pub. L. 103-322,
Title XXXII, § 320935, 108 Stat. 2135, effective July 9, 1995. The Judicial
Conference of the United States disapproved of these Rules and recommended
Congress either reconsider these Rules, or adopt an amendment to Rule 404
embodying the policies of Rules 413-415. Congress retained these Rules. There is
no Advisory Committee Note to this Rule.]

[Congress adopted Rules 413-15 in 1994, in Pub. L. 103-322,
Title XXXII, § 320935, 108 Stat. 2135, effective July 9, 1995. The Judicial
Conference of the United States disapproved of these Rules and recommended
Congress either reconsider these Rules, or adopt an amendment to Rule 404
embodying the policies of Rules 413-415. Congress retained these Rules. There is
no Advisory Committee Note to this Rule.]

The rules enacted by the Congress substituted the single Rule
501 in place of the 13 rules dealing with privilege prescribed by the Supreme
Court as Article V. The 13 superseded rules, with Advisory Committee’s Notes,
are included in the Appendix. The reasons given in support of the congressional
action are stated in the Report of the House Committee on the Judiciary, the
Report of the Senate Committee on the Judiciary, and Conference Report as set
forth below.

Report of the House Committee on the Judiciary

Article V as submitted to Congress contained thirteen Rules.
Nine of those Rules defined specific non-constitutional privileges which the
federal courts must recognize (i.e. required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to clergy, political vote,
trade secrets, secrets of state and other official information, and identity of
informer). Another Rule provided that only those privileges set forth in Article
V or in some other Act of Congress could be recognized by the federal courts.
The three remaining Rules addressed collateral problems as to waiver of
privilege by voluntary disclosure, privileged matters disclosed under compulsion
or without opportunity to claim privilege, comment upon or inference from a
claim of privilege, and jury instruction with regard thereto.

The Committee amended Article V to eliminate all of the
Court’s specific Rules on privileges. Instead, the Committee, through a single
Rule 501, left the law of privileges in its present state and further provided
that privileges shall continue to be developed by the courts of the United
States under a uniform standard applicable both in civil and criminal cases.
That standard, derived from Rule 26 of the Federal Rules of Civil Procedure,
mandates the application of the principles of the common law as interpreted by
the courts of the United States in the light of reason and experience. The words
"person, government, State, or political subdivision thereof" were added by the
Committee to the lone term "witnesses" used in Rule 26 to make clear that, as
under present law, not only witnesses have privileges. The Committee also
included in its amendment a proviso modeled after Rule 302 and similar to
language added by the Committee to Rule 601 relating to the competency of
witnesses. The proviso is designed to require the application of State privilege
law in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304
U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), a result in accord with current
federal court decisions. See Republic Gear Co. v. Borg-Warner Corp. 381 F.2d
551, 555-556 n. 2 (2d Cir. 1967). The Committee deemed the proviso to be
necessary in the light of the Advisory Committee’s view (see its note to Court
Rule 501) that this result is not mandated under Erie.

The rationale underlying the proviso is that federal law
should not supersede that of the States in substantive areas such as privilege
absent a compelling reason. The Committee believes that in civil cases in the
federal courts where an element of a claim or defense is not grounded upon a
federal question, there is no federal interest strong enough to justify
departure from State policy. In addition, the Committee considered that the
Court’s proposed Article V would have promoted forum shopping in some civil
actions, depending upon differences in the privilege law applied as among the
State and federal courts. The Committee’s proviso, on the other hand, under
which the federal courts are bound to apply the State’s privilege law in actions
founded upon a State-created right or defense, removes the incentive to "shop."

Report of Senate Committee on the Judiciary

Article V as submitted to Congress contained thirteen Rules.
Nine of those Rules defined specific nonconstitutional privileges which the
Federal courts must recognize (i.e., required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to clergy, political vote,
trade secrets, secrets of state and other official information, and identity of
informer). Many of these rules contained controversial modifications or
restrictions upon common law privileges. As noted supra, the House amended
article V to eliminate all of the Court’s specific rules on privileges. Through
a single rule, 501, the House provided that privileges shall be governed by the
principles of the common law as interpreted by the courts of the United States
in the light of reason and experience (a standard derived from rule 26 of the
Federal Rules of Criminal Procedure) except in the case of an element of a civil
claim or defense as to which State law supplies the rule of decision in which
event state privilege law was to govern.

The committee agrees with the main thrust of the House
amendment: that a federal developed common law based on modern reason and
experience shall apply except where the State nature of the issues renders
deference to State privilege law the wiser course, as in the usual diversity
case. The committee understands that thrust of the House amendment to require
that State privilege law be applied in "diversity" cases (actions on questions
of State law between citizens of different States arising under 28 U.S.C. §
1332). The language of the House amendment, however, goes beyond this in some
respects, and falls short of it in others: State privilege law applies even in
nondiversity, Federal question civil cases, where an issue governed by State
substantive law is the object of the evidence (such issues do sometimes arise in
such cases); and, in all instances where State privilege law is to be applied,
e.g., on proof of a State issue in a diversity case, a close reading reveals
that State privilege law is not to be applied unless the matter to be proved is
an element of that state claim or defense, as distinguished from a step along
the way in the proof of it.

The committee is concerned that the language used in the
House amendment could be difficult to apply. It provides that "in civil actions
... with respect to an element of a claim or defense as to which State law
supplies the rule of decision," State law on privilege applies. The question of
what is an element of a claim or defense is likely to engender considerable
litigation. If the matter in question constitutes an element of a claim, State
law supplies the privilege rule; whereas if it is a mere item of proof with
respect to a claim, then, even though State law might supply the rule of
decision, Federal law on the privilege would apply. Further, disputes will arise
as to how the rule should be applied in an antitrust action or in a tax case
where the Federal statute is silent as to a particular aspect of the substantive
law in question, but Federal cases had incorporated State law by reference to
State law. [footnote omitted] Is a claim (or defense) based on such a reference
a claim or defense as to which federal or State law supplies the rule of
decision?

Another problem not entirely avoidable is the complexity of
difficulty the rule introduces into the trial of a Federal case containing a
combination of Federal and State claims and defenses, e.g. an action involving
Federal antitrust and State unfair competition claims. Two different bodies of
privilege law would need to be consulted. It may even develop that the same
witness-testimony might be relevant on both counts and privileged as to one but
not the other. [footnote omitted]

The formulation adopted by the House is pregnant with
litigious mischief. The committee has, therefore, adopted what we believe will
be a clearer and more practical guideline for determining when courts should
respect State rules of privilege. Basically, it provides that in criminal and
Federal question civil cases, federally evolved rules on privilege should apply
since it is Federal policy which is being enforced.[footnote 3 states, "It is
also intended that the Federal rule of privileges should be applied with respect
to pendant State law claims when they arise in a Federal question case."]
Conversely, in diversity cases where the litigation in question turns on a
substantive question of State law, and is brought in the Federal courts because
the parties reside in different States, the committee believes it is clear that
State rules of privilege should apply unless the proof is directed at a claim or
defense for which Federal law supplies the rule of decision (a situation which
would not commonly arise). [footnote 4 states, "While such a situation might
require use of two bodies of privilege law, federal and state, in the same case,
nevertheless the occasions on which this would be required are considerably
reduced as compared with the House version, and confined to situations where the
Federal and State interests are such as to justify application of neither
privilege law to the case as a whole. If the rule proposed here results in two
conflicting bodies of privilege law applying to the same piece of evidence in
the same case, it is contemplated that the rule favoring reception of the
evidence should be applied. This policy is based on the present rule 43(a) of
the Federal Rules of Civil Procedure ...."] It is intended that the State rules
of privilege should apply equally in original diversity actions and diversity
actions removed under 28 U.S.C. § 1441(b).

Two other comments on the privilege rule should be made. The
committee has received a considerable volume of correspondence from psychiatric
organizations and psychiatrists concerning the deletion of rule 504 of the of
the rule submitted by the Supreme Court. It should be clearly understood that,
in approving this general rule as to privileges, the action of Congress should
not be understood as disapproving any recognition of a psychiatrist-patient, or
husband-wife, or any other of the enumerated privileges contained in the Supreme
Court rules. Rather, our action should be understood as reflecting the view that
the recognition of a privilege based on a confidential relationship and other
privileges should be determined on a case-by-case basis.

Further, we would understand that the prohibition against
spouses testifying against each other is considered a rule of privilege and
covered by this rule and not by rule 601 of the competency of witnesses.

Conference Report

Rule 501 deals with the privilege of a witness not to
testify. Both the House and Senate bills provide that federal privilege law
applies in criminal cases. In civil actions and proceedings, the House bill
provides that state privilege law applies "to an element of a claim or defense
as to which State law supplies the rule of decision." The Senate bill provides
that "in civil actions and proceedings arising under 28 U.S.C. § 1332 or 28
U.S.C. § 1335, or between citizens of different States and removed under 28
U.S.C. § 1441(b) the privilege of a witness, person, government, State or
political subdivision thereof is determined in accordance with State law, unless
with respect to the particular claim of defense, Federal law supplies the rule
of decision."

The wording of the House and Senate bills differ in the
treatment of civil actions and proceedings. The rule in the House bill applies
to evidence that relates to "an element of a claim or defense." If an item of
proof tends to support or defeat a claim or defense, or an element of a claim or
defense, and if state law supplies the rule of decision for that claim or
defense, then state privilege law applies to that to that item of proof.

Under the provision in the House bill, therefore, state
privilege law will usually apply in diversity cases. There may be diversity
cases, however, where a claim or defense is based upon federal law. In such
instances, federal privilege law will apply to evidence relevant to the federal
claim or defense. See Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173,
63 S. Ct. 172, 87 L. Ed. 165 (1942).

In non-diversity jurisdiction civil cases, federal privilege
law will generally apply. In those situations where a federal court adopts or
incorporates state law to fill interstices or gaps in federal statutory phrases,
the court generally will apply federal privilege law. As Justice Jackson has
said:

A federal court sitting in a non-diversity case such as
this does not sit as a local tribunal. In some cases it may see fit for
special reasons to give the law of a particular state highly persuasive or
even controlling effect, bu tin the last analysis its decision turns upon
the law of the United States, not that of any state.

In civil actions and proceedings, where the rule of decision
as to a claim or defense or as to an element of a claim or defense is supplied
by state law, the House provision requires that state law apply.

The Conference adopts the House provision.

Rule 502

Advisory Committee's Note

This new rule has two major purposes:

(1) It resolves some longstanding disputes in the
courts about the effect of certain disclosures of communications or information
protected by the attorney-client privilege or as work product--specifically
those disputes involving inadvertent disclosure and subject matter waiver.

(2) It responds to the widespread complaint that
litigation costs necessary to protect against waiver of attorney-client
privilege or work product have become prohibitive due to the concern that any
disclosure (however innocent or minimal) will operate as a subject matter waiver
of all protected communications or information. This concern is especially
troubling in cases involving electronic discovery. See, e.g., Hopson v. City
of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005)(electronic discovery may
encompass "millions of documents" and to insist upon "record-by-record
pre-production privilege review, on pain of subject matter waiver, would impose
upon parties costs of production that bear no proportionality to what is at
stake in the litigation").

The rule seeks to provide a
predictable, uniform set of standards under which parties can determine the
consequences of a disclosure of a communication or information covered by
the attorney-client privilege or work-product protection. Parties to litigation
need to know, for example, that if they exchange privileged information pursuant
to a confidentiality order, the court's order will be enforceable. Moreover, if
a federal court's confidentiality order is not enforceable in a state court then
the burdensome costs of privilege review and retention are unlikely to be
reduced.

The rule makes
no attempt to alter federal or state law on whether a communication or
information is protected under the attorney-client privilege or work-product
immunity as an initial matter. Moreover, while establishing some exceptions to
waiver, the rule does not purport to supplant applicable waiver doctrine
generally.

The rule
governs only certain waivers by disclosure. Other common-law waiver doctrines
may result in a finding of waiver even where there is no disclosure of
privileged information or work product. See, e.g., Nguyen v. Excel Corp.,
197 F.3d 200 (5th Cir. 1999)(reliance on an advice of counsel defense waives the
privilege with respect to attorney-client communications pertinent to that
defense); Ryers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983)(allegation of
lawyer malpractice constituted a waiver of confidential communications under the
circumstances). The rule is not intended to displace or modify federal common
law concerning waiver of privilege or work product where no disclosure has been
made.

Subdivision (a).
The rule provides that a voluntary disclosure in a federal proceeding or to a
federal office or agency, if a waiver, generally results in a waiver only of the
communication or information disclosed; a subject matter waiver (of either
privilege or work product) is reserved for those unusual situations in which
fairness requires a further disclosure of related, protected information, in
order to prevent a selective and misleading presentation of evidence to the
disadvantage of the adversary. See, e.g., In re United Mine Workers of
America Employee Benefit Plans Litig., 159 F.R.D. 307, 3212 (D.D.C.
1994)(waiver of work product limited to materials actually disclosed, because
the party did not deliberately disclose documents in an attempt to gain a
tactical advantage ). Thus, subject matter waiver is limited to situations in
which a party intentionally puts protected information into the litigation in a
selective, misleading and unfair manner. It follows that an inadvertent
disclosure of protected information can never result in a subject matter waiver.
See Rule 502(b). The rule rejects the result in In re Sealed Case,
877 F.2d 976 (D.C. Cir. 1989), which held that inadvertent disclosure of
documents during discovery automatically constituted a subject matter waiver.

The language concerning subject matter
waiver--"ought in fairness"--is taken from Rule 106, because the animating
principle is the same. Under both Rules, a party that makes a selective,
misleading presentation that is unfair to the adversary opens itself to a more
complete and accurate presentation.

To assure protection and predictability, the rule
provides that if a disclosure is made at the federal level, the federal rule on
subject matter waiver governs subsequent state court determinations on the scope
of the waiver by that disclosure.

Subdivision (b). Courts are in conflict
over whether an inadvertent disclosure of a communication or information
protected as privileged or work product constitutes a waiver. A few courts find
that a disclosure must be intentional to be a waiver. Most courts find a waiver
only if the disclosing party acted carelessly in disclosing the communication or
information and failed to request its return in a timely manner. And a few
courts hold that any inadvertent disclosure of a communication or information
protected under the attorney-client privilege or as work product constitutes a
waiver without regard to the protections taken to avoid such a disclosure.
See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005), for
a discussion of this case law.

The rule opts for the middle
ground: inadvertent disclosure of protected communications or information in
connection with a federal proceeding or to a federal office or agency does not
constitute a waiver if the holder took reasonable steps to prevent disclosure
and also promptly took reasonable steps to rectify the error. This position is
in accord with the majority view on whether inadvertent disclosure is a waiver.

Cases such as Lois Sportswear, U.S.A., Inc. v.
Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire
Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985), set out a
multifactor test for determining whether inadvertent disclosure is a waiver. The
stated factors (none of which is dispositive) are the reasonableness of
precautions taken, the time taken to rectify the error, the scope of discovery,
the extent of disclosure and the overriding issue of fairness. The rule does not
explicitly codify that test, because it is really a set of non-determinative
guidelines that vary from case to case. The rule is flexible enough to
accommodate any of those listed factors. Other considerations bearing on the
reasonableness of a producing party's efforts include the number of documents to
be reviewed and the time constraints for production. Depending on the
circumstances, a party that uses advanced analytical software applications and
linguistic tools in screening for privilege and work product may be found to
have taken "reasonable steps" to prevent inadvertent disclosure. The
implementation of an efficient system of records management before litigation
may also be relevant.

The
rule does not require the producing party to engage in a post-production review
to determine whether any protected communication or information has been
produced by mistake. But the rule does require the producing party to follow up
on any obvious indications that a protected communication or information has
been produced inadvertently.

Subdivision (c). Difficult questions can
arise when (1) a disclosure of a communication or information protected by the
attorney-client privilege or as work product is made in a state proceeding, (2)
the communication or information is offered in a subsequent federal proceeding
on the ground that the disclosure waived the privilege or protection, and (3)
the state and federal laws in conflict on the question of waiver. The Committee
determined that the proper solution for the federal court is to apply the law
that is most protective of privilege and work product. If the state law is more
protective (such as where the state law is that an inadvertent disclosure can
never be a waiver), the holder of the privilege or protection may well have
relied on that law when making the disclosure in the state proceeding. Moreover,
applying a more restrictive federal law of waiver could impair the state
objective of preserving the privilege or work-product protection for disclosures
made in state proceedings. On the other hand, if the federal law is more
protective, applying the state law of waiver to determine admissibility in
federal court is likely to undermine the federal objective of limiting the costs
of production.

The rule
does not address the enforceability of a state court confidentiality order in a
federal proceeding, as that question is covered by both statutory law and
principles of federalism and comity. See 28 U.S.C. § 1738 (providing that
state judicial proceedings "shall have the same full faith and credit in every
court within the United States ... as they have by law or usage in the courts of
such State ... from which they are taken"). See also Tucker v. Ohtsu Tire &
Rubber Co., 191 F.R.D. 495, 499 (D.Md. 2000)(noting that a federal court
considering the enforceability of a state confidentiality order is "constrained
by principles of comity, courtesy, and ... federalism"). Thus, a state court
order finding no waiver in connection with a disclosure made in a state court
proceeding is enforceable under existing law in subsequent federal proceedings.

Subdivision (d). Confidentiality orders are
becoming increasingly important in limiting the costs of privilege review and
retention, especially in cases involving electronic discovery. But the utility
of a confidentiality order in reducing discovery costs is substantially
diminished if it provides no protection outside the particular litigation in
which the order is entered. Parties are unlikely to be able to reduce the costs
of pre-production review for privilege and work product if the consequence of
disclosure is that the communications or information could be used by
non-parties to the litigation.

There is some dispute on whether a confidentiality
order entered in one case is enforceable in other proceedings. See generally
Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005), for a discussion
of this case law. The rule provides that when a confidentiality order governing
the consequences of disclosure in that case is entered in a federal proceeding,
its terms are enforceable against non-parties in any federal or state
proceeding. For example, the court order may provide for return of documents
without waiver irrespective of the care taken by the disclosing party; the rule
contemplates enforcement of "claw-back" and "quick peek" arrangements as a way
to avoid the excessive costs of pre-production review for privilege and work
product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y.
2003)(noting that parties may enter into "so-called 'claw-back' agreements that
allow the parties to forego privilege review altogether in favor of an agreement
to return inadvertently produced privilege documents"). The rule provides a
party with the predictable protection from a court order--predictability that is
needed to allow the party to plan in advance to limit the prohibitive costs of
privilege and work product review and retention.

Under the rule, a confidentiality order is
enforceable whether or not it memorializes an agreement among the parties to the
litigation. Party agreement should not be a condition of enforceability of a
federal court's order.

Under subdivision (d), a federal court may order that disclosure of privileged
or protected information "in connection with" a federal proceeding does not
result in waiver. But subdivision (d) does not allow the federal court to enter
an order determining the waiver effects of a separate disclosure of the same
information in other proceedings, state or federal. If a disclosure has been
made in a state proceeding (and is not the subject of a state-court order on
waiver), then subdivision (d) is an applicable. Subdivision (c) would govern the
federal court's determination whether the state-court disclosure waived the
privilege or protection in the federal proceedings.

Subdivision (e). Subdivision (e) codifies
the well-established proposition that parties can enter an agreement to limit
the effect of waiver by disclosure between or among them. Of course such an
agreement can bind only the parties to the agreement. The rule makes clear that
if parties want protection against non-parties from a finding of waiver by
disclosure, the agreement must be made part of a court order.

Subdivision (f). The
protections against waiver provided by Rule 502 must be applicable when
protected communications or information disclosed in federal proceedings are
subsequently offered in state proceedings. Otherwise the holders of protected
communications and information, and their lawyers, could not rely on the
protections provided by the Rule, and the goal of limiting costs in discovery
would be substantially undermined. Rule 502(f) is intended to resolve any
potential tension between the provisions of Rule 502 that apply to state
proceedings and the possible limitations on the applicability of the Federal
Rules of Evidence otherwise provided by Rules 101 and 1101.

The rule is intended to apply
in all federal court proceedings, including court-annexed and court-ordered
arbitrations, without regard to any possible limitations of Rules 101 and 1101.
This provision is not intended to raise an inference about the applicability of
the Federal Rules of Evidence otherwise provided by Rules 101 and 1101.

The costs of discovery can be equally high for
state and federal causes of action, and the rule seeks to limit those costs in
all federal proceedings, regardless of whether the claim arises under state or
federal law. Accordingly, the rule applies to state law causes of action brought
in federal court.

Subdivision (g). The rule's coverage is limited to attorney-client privilege
and work product. The operation of waiver by disclosure, as applied to other
evidentiary privileges, remains a question of federal common law. Nor does the
rule purport to apply to the Fifth Amendment privilege against
self-incrimination. The definition of work product "materials" is intended to
include both tangible and intangible information. See In re Cendant Corp.
Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003)("work product protection
extends to both tangible and intangible work product").

STATEMENT OF CONGRESSIONAL
INTENT REGARDING RULE 502 OF THE FEDERAL RULES OF EVIDENCE

(Cong. Rec. H7818, Sept. 8, 2008)

During consideration of this rule in Congress, a
number of questions were raised about the scope and contours of the effect of
the proposed rule on current law regarding attorney-client privilege and
work-product protection. These questions were ultimately answered
satisfactorily, without need to revise the text of the rule as submitted to
Congress by the Judicial Conference.

In general, these questions are answered by
keeping in mind the limited though important purpose and focus of the rule. The
rule addresses only the effect of disclosure, under specified circumstances, of
a communication that is otherwise protected by attorney-client privilege, or of
information that is protected by work-product protection, on whether the
disclosure itself operates as a waiver of the privilege (or protection) to prove
that the particular information (or communication) qualifies for it. And it is
not intended to alter the rules and practices governing use of information
outside this evidentiary context.

Some of these questions are addressed more
specifically below, in order to help further avoid uncertainty in the
interpretation and application of the rule.

Subdivision (a)--Disclosure vs. Use This
subdivision does not alter the substantive law regarding when a party's
strategic use in litigation of otherwise privileged information obliges that
party to waive the privilege regarding other information concerning the same
subject matter, so that the information being used can be fairly considered in
context. One situation in which this issue arises, the assertion as a defense in
patent-infringement litigation that a party was relying on advice of counsel, is
discussed elsewhere in this Note. In this and similar situations, under
subdivision (a)(1) the party using an attorney-client communication to its
advantage in the litigation has, in so doing, intentionally waived the privilege
as to other communications concerning the same subject matter, regardless of the
circumstances in which the communication being so used was initially disclosed.

Subdivision (b)--Fairness Considerations
The standard set forth in this subdivision for determining whether a disclosure
operates as a waiver of the privilege or protection is, as explained elsewhere
in this Note, the majority rule in the federal courts. The majority rule has
simply been distilled here into a standard designed to be predictable in its
application. This distillation is not intended to foreclose notions of fairness
from continuing to inform application of the standard in all aspects as
appropriate in particular cases--for example, as to whether steps taken to
rectify an erroneous inadvertent disclosure were sufficiently prompt under
subdivision (b)(3) where the receiving party has relied on the information
disclosed.

Subdivisions (a) and (b)--Disclosures to Federal Office or Agency This rule,
as a Federal Rule of Evidence, applies to admissibility of evidence. While
subdivisions (a) and (b) are written broadly to apply as appropriate to
disclosures of information to a federal office or agency, they do not apply to
uses of information--such as routine use in government publications--that fall
outside the evidentiary context. Nor do these subdivisions relieve the party
seeking to protect the information as privileged from the burden of proving that
the privilege applies in the first place.

Subdivision (d)--Court Orders This
subdivision authorizes a court to enter orders only in the context of litigation
pending before the court. And it does not alter the law regarding waiver of
privilege resulting from having acquiesced in the use of otherwise privileged
information. Therefore, this subdivision does not provide a basis for a court to
enable parties to agree to a selective waiver of the privilege, such as to a
federal agency conducting an investigation, while preserving the privilege as
against other parties seeking the information. This subdivision is designed to
enable a court to enter an order, whether on motion of one or more parties or on
its own motion, that will allow the parties to conduct and respond to discovery
expeditiously, without the need for exhaustive pre-production privilege reviews,
while still preserving each party's right to assert the privilege to preclude
use in litigation of information disclosed in such discovery.

While the benefits of a court order under this
subdivision would be equally available in government enforcement actions as in
private actions, acquiescence by the disclosing party in use by the federal
agency of information disclosed pursuant to such an order would still be treated
as under current law for the purposes of determining whether the acquiescence in
use of the information, as opposed to its mere disclosure, effects a waiver of
the privilege. The same applies to acquiescence in use by another private party.

Moreover, whether the order is entered on motion
of one or more parties, or on the court's own motion, the court retains its
authority to include the conditions it deems appropriate in the circumstances.

Subdivision (e)--Party Agreements This
subdivision simply makes clear that while parties to a case may agree among
themselves regarding the effect of disclosures between each other in a federal
proceeding, it is not binding on others unless it is incorporated into a court
order. This subdivision does not confer any authority on a court to enter any
order regarding the effect of disclosures. That authority must be found in
subdivision (d), or elsewhere.

The first sentence of this rule enacted by the Congress is
the entire rule prescribed by the Supreme Court, without change. The second
sentence was added by congressional action.

Advisory Committee’s Note

This general ground-clearing eliminates all grounds of
incompetency not specifically recognized in the succeeding rules of this
Article. Included among the grounds thus abolished are religious belief,
conviction of crime, and connection with the litigation as a party or interested
person or spouse of a party of interested person. With the exception of the
so-called Dead Man’s Acts, American jurisdictions generally have ceased to
recognize these grounds.

The Dead Man’s Acts are surviving traces of the common law
disqualification of parties and interested persons. They exist in variety too
great to convey conviction of their wisdom and effectiveness. These rules
contain to no provision of this kind....

No mental or moral qualifications for testifying as a witness
are specified. Standards of mental capacity have proved elusive in actual
application. A leading commentator observes that few witnesses are disqualified
on the that ground. Weihofen, Testimonial Competence and Credibility, 34 Geo.
Wash. L. Rev. 53 (1965). Discretion is regularly exercised in favor of allowing
the testimony. A witness wholly without capacity is difficult to imagine. The
question is one particularly suited to the jury as one of weight and
credibility, subject to judicial authority to review the sufficiency of the
evidence. 2 Wigmore §§ 501, 509. Standards of moral qualification in practice
consist essentially of evaluating a person’s truthfulness in terms of his own
answers about it. Their principal utility is in affording an opportunity on voir
dire examination to impress upon the witness his moral duty. This result may,
however, be accomplished more directly, and without haggling in terms of legal
standards, by the manner of administering the oath or affirmation under Rule
603.

Admissibility of religious belief as a ground of impeachment
is treated in Rule 610. Conviction of crime as a ground of impeachment is the
subject of Rule 609. Martial relationship is the basis for privilege under Rule
505. Interest in the outcome of litigation and mental capacity are, of course,
highly relevant to credibility and require no special treatment to render them
admissible along with other matters bearing upon the perception, memory, and
narration of witnesses.

Report of the House Committee on the Judiciary

Rule 601 as submitted to the Congress provided that "Every
person is competent to be a witness except as otherwise provided in these
rules." One effect of the Rule as proposed would have been to abolish age,
mental capacity, and other grounds recognized in some State jurisdictions as
making a person incompetent as a witness. The greatest controversy centered
around the Rule’s rendering inapplicable in the federal courts the so-called
Dead Man’s Statutes which exist in some States. Acknowledging that there is
substantial disagreement as to the merit of Dead Man’s Statutes, the Committee
nevertheless believed that where such statutes have been enacted they represent
State policy which should not be overturned in the absence of a compelling
federal interest. The Committee therefore amended the Rule to make competency in
civil actions determinable in accordance with State law with respect to elements
of claims or defenses as to which State law supplies the rule of decision. Cf.
Courtland v. Walston & Co., Inc., 340 F.Supp. 1076, 1087-1092 (S.D.N.Y. 1972).

Rule 601 deals with competency of witnesses. Both the House
and Senate bills provide that federal competency law applies in criminal cases.
In civil actions and proceedings, the House bill provides that state competency
law applies "to an element of a claim or defense as to which State law supplies
the rule of decision." The Senate bill provides that "in civil actions and
proceedings arising under 28 U.S.C. § 1332 or 28 U.S.C. § 1335, or between
citizens of different States and removed under 28 U.S.C. § 1441(b) the
competency of a witness, person, government, State or political subdivision
thereof is determined in accordance with State law, unless with respect to the
particular claim or defense, Federal law supplies the rule of decision."

The wording of the House and Senate bills differs in the
treatment of civil actions and proceedings. The rule in the House bill applies
to evidence that relates to "an element of a claim or defense." If an item of
proof tends to support or defeat a claim or defense, or an element of a claim or
defense, and if state law supplies the rule of decision for that claim or
defense, then state competency law applies to that item of proof.

For reasons similar to those underlying its action on Rule
501, the Conference adopts the House provision.

"...[T]he rule requiring that a witness who testifies to a
fact which can be perceived by the senses must have had a opportunity to
observe, and must have actually observed the fact" is a "most pervasive
manifestation" of the common law insistence upon "the most reliable sources of
information." McCormick § 10, p. 19. These foundation requirements may, of
course, be furnished by the testimony of the witness himself; hence personal
knowledge is not an absolute but may consist of what the witness thinks he knows
from personal perception. 2 Wigmore § 650. It will be observed that the rule is
in fact a specialized application of the provisions of Rule 104(b) on
conditional relevancy.

The rule does not govern the situation of a witness who
testifies to a hearsay statement as such, if he has personal knowledge of the
making of the statement. Rules 801 and 805 would be applicable. This rule would,
however, prevent him from testifying to the subject matter of the hearsay
statement, as he has no personal knowledge of it.

The reference to Rule 703 is designed to avoid any question
of conflict between the present rule and the provisions of that rule allowing an
expert to express opinions based on the facts of which he does not have personal
knowledge.

The rule is designed to afford the flexibility required in
dealing with religious adults, atheists, conscientious objectors, mental
defectives, and children. Affirmation is simply a solemn undertaking to tell the
truth; no special verbal formula is required. As is true generally, affirmation
is recognized by federal law. "Oath" includes affirmation, 1 U.S.C. § 1; judges
and clerks may administer oaths and affirmations, 28 U.S.C.§§ 459, 953; and
affirmations are acceptable in lieu of oaths under Rule 43(d) of the Federal
Rules of Civil Procedure. Perjury by a witness is a crime, 18 U.S.C. § 1621.

The rule implements Rule 43(f) of the Federal Rules of Civil
Procedure and Rule 28(b) of the Federal Rules of Criminal Procedure, both of
which contain provisions for the appointment and compensation of interpreters.

In view of the mandate of 28 U.S.C. § 455 that a judge
disqualify himself in "any case in which he ... is or has been a material
witness," the likelihood that the presiding judge in a federal court might be
called to testify in the trial over which he is presiding is slight.
Nevertheless the possibility is not totally eliminated.

The solution here presented is a broad rule of incompetency,
rather than such alternatives as incompetency only as to material matters,
leaving the matter to the discretion of the judge, or recognizing no
incompetency. The choice is the result of inability to evolve satisfactory
answers to questions which arise when the judge abandons the bench for the
witness stand. Who rules on objections? Who compels him to answer? Can he rule
impartially on the weight and admissibility of his own testimony? Can he be
impeached or cross-examined effectively? Can he, in a jury trial, avoid
conferring his seal of approval on one side in the eyes of the jury? Can he, in
a bench trial, avoid an involvement destructive of impartiality? The rule of
general incompetency has substantial support. See Report of the Special
Committee on the Propriety of Judges Appearing as Witnesses, 36 A.B.A.J. 63
(1950); cases collected in Annot. 157 A.L.R. 311; McCormick § 68,0. 147; Uniform
Rule 42; California Evidence Code § 703; Kansas Code of Civil Procedure
§ 60-442; New Jersey Evidence Rule 42. Cf. 6 Wigmore § 1909, which advocates
leaving the matter to the discretion of the judge, and statutes to that effect
collected in Annot. 157 a.L.R. 311.

The rule provides an "automatic" objection. To require an
actual objection would confront the opponent with a choice between not
objecting, with the result of allowing the testimony, and objecting, with the
probable result of excluding the testimony but at the price of continuing the
trial before a judge likely to feel that his integrity had been attacked by the
objector.

Rule 606(b) has been amended to
provide that juror testimony may be used to prove that the verdict reported was
the result of a mistake in entering the verdict on the verdict form. The
amendment responds to a divergence between the text of the Rule and the case law
that has established an exception for proof of clerical errors. See, e.g.,
Plummer v. Springfield Term. Ry., 5 F.3d 1, 3 (1st Cir. 1993)("A number of
circuits hold, and we agree, that juror testimony regarding an alleged clerical
error, such as announcing a verdict different than that agreed upon, does not
challenge the validity of the verdict or the deliberation of mental processes,
and therefore is not subject to Rule 606(b)."); Teevee Toons, Inc. v.
MP3.Com, Inc., 148 F. Supp.2d 276, 278 (S.D.N.Y. 2001)(noting that Rule
606(b) has been silent regarding inquiries designed to confirm the accuracy of a
verdict).

In adopting the exception for
proof of mistakes in entering the verdict on the verdict form, the amendment
specifically rejects the broader exception, adopted by some courts, permitting
the use of juror testimony to prove that the jurors were operating under a
misunderstanding about the consequences of the result that they agreed upon.
See, e.g., Attridge v. Cencorp Div. of Dover Techs. Int'l, Inc., 836 F.2d
113, 116 (2d Cir. 1987); Eastridge Development Co. v. Halpert Associates,
Inc., 853 F.2d 772 (10th Cir. 1988). The broader exception is rejected
because an inquiry into whether the jury misunderstood or misapplied an
instruction goes to the jurors' mental processes underlying the verdict, rather
than the verdict's accuracy in capturing what the jurors had agreed upon.
See, e.g., Karl v. Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir.
1989)(error to receive juror testimony on whether verdict was the result of
jurors' misunderstanding of instructions: "The jurors did not state that the
figure written by the foreman was different from that which they agreed upon,
but indicated that the figure the foreman wrote down was intended to be a net
figure, not a gross figure. Receiving such statements violates Rule 606(b)
because the testimony relates to how the jury interpreted the court's
instructions, and concerns the jurors' 'mental processes,' which is forbidden by
the rule."); Robles v. Exxon Corp., 862 F.2d 1201, 1208 (5th Cir.
1989)("the alleged error here goes to the substance of what the jury was asked
to decide, necessarily implicating the jury's mental processes insofar as it
questions the jury's understanding of the courts' instructions and application
of those instructions to the facts of the case"). Thus, the exception
established by the amendment is limited to cases such as "where the jury
foreperson wrote down, in response to an interrogatory, a number different from
that agreed upon by the jury, or mistakenly stated that the defendant was
'guilty' when the jury had actually agreed that the defendant was not guilty."
Id.

It should be noted that the
possibility of errors in the verdict form will be reduced substantially by
polling the jury. Rule 606(b) does not, of course, prevent this precaution.
See 8 C. [sic]
Wigmore,
Evidence, § 2350 at 691 (McNaughten
[sic] ed. 1961)(noting that the reasons for the rule barring juror testimony,
"namely, the dangers of uncertainty and of tampering with the jurors to procure
testimony, disappear in large part if such investigation as may be desired is
made by the judge and take place before the jurors' discharge and
separation")(emphasis in original). Errors that come to light after polling the
jury "may be corrected on the spot, or the jury may be sent out to continue
deliberations, or, if necessary, a new trial may be ordered."
C. Mueller & L. Kirkpatrick, Evidence
Under the Rules at 671 (2d ed. 1999)(citing Sincox v. United States,
571 F.2d 876, 878-79 (5th Cir. 1978)).

Advisory Committee’s Note

Subdivision (a). The considerations which bear upon the
permissibility of testimony by a juror in the trial in which he is sitting as
juror bear an obvious similarity to those evoked when the judge is called as a
witness. See Advisory Committee’s Note to Rule 605. The judge is not, however,
in this instance so involved as to call for departure from the usual principles
requiring objection to be made; hence the only provision on objection is that
opportunity be afforded for its making out of the presence of the jury. Compare
Rule 605.

Subdivision (b). Whether testimony, affidavits, or
statements of jurors should be received for the purpose of invalidating or
supporting a verdict of indictment, and if so, under what circumstances, has
given rise to substantial differences of opinion. The familiar rubric that a
juror may not impeach his own verdict, dating from Lord Mansfield’s time, is a
gross oversimplification. The values sought to be promoted by excluding the
evidence include freedom of deliberation, stability and finality of verdicts,
and protection of jurors against annoyance and embarrassment. McDonald v. Pless,
238 U.S. 264, 35 S.Ct. 783, 59 L. Ed. 1300 (1915). On the other hand, simply
putting verdicts beyond effective reach can only promote irregularity and
injustice. The rule offers an accommodation between these competing
considerations.

The mental operations and emotional reactions of jurors in
arriving at a given result would, if allowed as a subject of inquiry, place
every verdict at the mercy of jurors and invite tampering and harassment. See
Grenz v. Werre, 129 N.W.2d 781 (N.D. 1964). The authorities are in virtually
complete accord in excluding the evidence. Fryer, Note on Disqualification of
Witnesses, Selected Writings on Evidence and Trial 34, 347 (Fryer ed. 1957);
Maguire, Weinstein, et al., Cases on Evidence 887 (5th ed. 1965); 8 Wigmore
§ 2349 (McNaughton Rev. 1961). As to matters other than mental operations and
emotional reactions of jurors, substantial authority refuses to allow a juror to
disclose irregularities which occur in the jury room, but allows his testimony
as to irregularities occurring outside and allows outsiders to testify as to
occurrences both inside and out. 8 Wigmore § 2354 (McNaughton Rev. 1961)
However, the door of the jury room is not necessarily a satisfactory dividing
point, and the Supreme Court has refused to accept it for every situation.
Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L. Ed. 917 (1892).

Under the federal decisions the central focus has been upon
insulation of the manner in which the jury reached its verdict, and this
protection extends to each of the components of deliberations, including
arguments, statements, discussion, mental and emotional reactions, votes, and
any other feature of the process. Thus testimony or affidavits of jurors have
been held incompetent to show a compromise verdict, Hyde v. United States, 225
U.S. 347, 382, 32 S.Ct. 793, 807, 56 L. Ed. 1114 (1912); a quotient verdict,
McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L. Ed. 1300 (1915);
speculation as to insurance coverage, Holden v. Porter, 405 F.2d 878 (10th Cir.
1969), Farmers Co-op, Elev. Ass’n v. Strand, 382 F. 2d 224, 230 (8th Cir. 1967),
cert. denied 389 U.S. 1014, 88 S.Ct. 589, 19 L. Ed. 2d 659; misinterpretation of
instructions, Farmers Coop, Elev. Ass’n v. Strand, supra; mistake in returning
verdict, United States v. Chereton, 309 F. 2d 197 (6th Cir. 1962);
interpretation of guilty plea by one defendant as implicating others, United
States v. Crosby, 294 F. 2d 928, 949 (2d Cir. 1961). The policy does not,
however, foreclose testimony by jurors as to prejudicial extraneous information
or influences injected into or brought to bear upon the deliberative process.
Thus a juror is recognized as competent to testify to statements by the bailiff
or the introduction of a prejudicial newspaper account into the jury room,
Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L. Ed. 917 (1892). See
also Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L. Ed. 2d 410 (1966).

This rule does not purport to specify the substantive grounds
for setting aside verdicts for irregularity; it deals only with the competency
of jurors to testify concerning those grounds.

See also Rule 6(e) of the Federal Rules of Criminal Procedure
and 18 U.S.C. § 3500, governing the secrecy of grand jury proceedings. The
present rule does not relate to secrecy and disclosure but to the competency of
certain witnesses and evidence.

Report of House Judiciary Committee

As proposed by the Court, Rule 606(b) limited testimony by a
juror in the course of an inquiry into the validity of a verdict or indictment.
He could testify as to the influence of extraneous prejudicial information
brought to the jury’s attention (e.g., a radio newscast or a newspaper account)
or an outside influence which improperly had been brought to bear upon a juror
(e.g., a threat to the safety of a member of his family), but he could not
testify as to other irregularities which occurred in the jury room. Under this
formulation a quotient verdict could not be attacked through the testimony of a
juror, nor could a juror testify to the drunken condition of a fellow juror
which so disabled him that he could not participate in the jury’s deliberations.

The 1969 and 1971 Advisory Committee drafts would have
permitted a member of the jury to testify concerning these kinds of
irregularities in the jury room. The Advisory Committee note in the 1971 draft
state that "... the door of the jury room is not a satisfactory dividing point,
and the Supreme Court has refused to accept it." The Advisory Committee further
commented that—

The trend has been to draw the dividing line between
testimony as to mental processes, on the one hand, and as to the existence
of conditions or occurrences of events calculated improperly to influence
the verdict, on the other hand, without regard to whether the happening is
within or without the jury room.... The jurors are the persons who know what
really happened. Allowing them to testify as to matters other than their own
reactions involves no particular hazard to the values sought to be
protected. The rule is based upon this conclusion. It makes no attempt to
specify the substantive grounds for setting aside verdicts for irregularity.

Objective jury misconduct may be testified to in California,
Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon,
Tennessee, Texas, and Washington.

Persuaded that the better practice is that provided for in
the earlier drafts, the Committee amended subdivision (b) to read in the text of
those drafts.

Report of Senate Judiciary Committee

As adopted by the House, this rule would permit the
impeachment of verdicts by inquiry into, not the mental processes of the jurors,
but what happened in terms of conduct in the jury room. This extension of the
ability to impeach a verdict is felt to be unwarranted and ill-advised.

The rule passed by the House embodies a suggestion by the
Advisory Committee of the Judicial Conference that is considerably broader than
the final version adopted by the Supreme Court, which embodied long-accepted
Federal law. Although forbidding the impeachment of verdicts by inquiry into the
jurors’ mental processes, it deletes from the Supreme Court version the
proscription against testimony "as to any matter or statement occurring during
the course of the jury’s deliberations." This deletion would have the effect of
opening verdicts up to challenge on the basis of what happened during the jury’s
internal deliberations, for example, where a juror alleged that the jury refused
to follow the trial judge’s instructions or that some of the jurors did not take
part in deliberations.

Permitting an individual to attack a jury verdict based upon
the jury’s internal deliberations has long been recognized as unwise by the
Supreme Court. In McDonald v. Pless, the Court stated:

. . .

[L]et it once be established that verdicts solemnly made
and publicly returned into court can be attacked and set aside on the
testimony of those who took part in their publications and all verdicts
could be, and many would be, followed by an inquiry in the hope of
discovering something which might invalidate the finding. Jurors would be
harassed and beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient to set aside a
verdict. If evidence thus secured could be thus used, the result would be to
make what was intended to be a private deliberation, the constant subject of
public investigation—to the destruction of all frankness and freedom of
discussion and conference. [footnote omitted]

...

As it stands then, the rule would permit the harassment of
former jurors by losing parties as well as the possible exploitation of
disgruntled or otherwise badly-motivated ex-jurors.

Public policy requires a finality to litigation. And common
fairness requires that absolute privacy be preserved for jurors to engage in the
full and free debate necessary to the attainment of just verdicts. Jurors will
not be able to function effectively if their deliberations are to be scrutinized
in post-trial litigation. In the interest of protecting the jury system and the
citizens who make it work, rule 606 should not permit any inquiry into the
internal deliberations of the jurors.

Conference Report

Rule 606(b) deals with juror testimony in an inquiry into the
validity of a verdict or indictment. The House bill provides that a juror cannot
testify about his mental processes or about the effect of anything upon his or
another juror’s mind as influencing him to assent to or dissent from a verdict
or indictment. Thus, the House bill allows a juror to testify about objective
matters occurring during the jury’s deliberation, such as the misconduct of
another juror or the reaching of a quotient verdict. The Senate bill does not
permit juror testimony about any matter or statement occurring during the course
of the jury’s deliberations. The Senate bill does provide, however, that a juror
may testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention and on the question whether any
outside influence was improperly brought to bear on any juror.

The Conference adopts the Senate amendment. The Conferees
believed that jurors should be encouraged to be conscientious in promptly
reporting to the court misconduct that occurs during jury deliberations.

The traditional rule against impeaching one’s own witness is
abandoned as based on false premises. A party does not hold out his witnesses as
worthy of belief, since he rarely has a free choice in selecting them. Denial of
the right leaves the party at the mercy of the witness and the adversary. If the
impeachment is by a prior statement, it is free from hearsay dangers and is
excluded from the category of hearsay under Rule 801(d)(1). Ladd, Impeachment of
One’s Own Witness—New Developments 4 U. Chi. L. Rev. 69 (1936); McCormick § 38,
3 Wigmore §§ 896-918. The substantial inroads into the old rule made over the
years by decisions, rules, and statutes are evidence of doubts as to its basic
soundness and workability. Cases are collected in 3 Wigmore § 905. Revised Rule
32(a)(1) of the Federal Rules of Civil Procedure allows any party to impeach a
witness by means of his deposition, and Rule 43(b) has allowed the calling and
impeachment of an adverse party or person identified with him. Illustrative
statutes allowing a party to impeach his own witness under varying circumstances
are Ill. Rev. Stats. 1967, c. 100, § 60; Mass. Laws Annot. 1959, c. 233 § 23; 20
N. M. Stats. Annot. 1953, § 20-2-4; N.Y.C. PLR § 4514 (McKinney 1963); 12 Vt.
Stats. Annot. 1959, §§ 1641a, 1642. Complete judicial rejection of the old rule
is found in United States v. Freeman, 302 F. 2d 347 (2d Cir. 1962). The same
result is reached in Uniform Rule 20; California Evidence Code § 785; Kansas
Code of Civil Procedure § 60-420. See also New Jersey Evidence Rule 20.

The Rule has been amended to
clarify that the absolute prohibition on extrinsic evidence applies only when
the sole reason for proffering that evidence is to attack or support the
witness' character for truthfulness See United States v. Abel, 469 U.S.
45 (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 1984) (Rule
608(b) limits the use of evidence "designed to show that the witness has done
things, unrelated to the suit being tried, that make him more or less believable
per se"); Ohio R. Evid. 608(b). On occasion the Rule's use of the overbroad term
"credibility" has been read "to bar extrinsic evidence for bias, competency and
contradiction impeachment since they too deal with credibility." American Bar
Association Section of Litigation, Emerging Problems Under the Federal Rules
of Evidence at 161 (3d ed. 1998). The amendment conforms the language of the
Rule to its original intent, which was to impose an absolute bar on extrinsic
evidence only if the sole purpose for offering the evidence was to prove the
witness' character for veracity. See Advisory Committee Note to Rule 608(b)
(stating that the Rules is "[i]n conformity with Rule 405, which forecloses use
of evidence of specific incidents as proof in chief of character unless
character is in issue in the case ...").

By limiting the application of
the Rule to proof of a witness' character for truthfulness, the amendment leaves
the admissibility of extrinsic evidence offered for other grounds of impeachment
(such as contradiction, prior inconsistent statement, bias and mental capacity)
to Rules 402 and 403. See, e.g., United States v. Winchenbach, 197 F.3d
548 (1st Cir. 1999) (admissibility of a prior inconsistent statement offered for
impeachment is governed by Rules 402 and 403, not Rule 608(b)); United States
v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988) (admissibility of extrinsic
evidence offered to contradict a witness is governed by Rules 402 and 403);
United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (admissibility of
extrinsic evidence of bias is governed by Rules 402 and 403).

It should be noted that the
extrinsic evidence prohibition of Rule 608(b) bars any reference to the
consequences that a witness might have suffered as a result of an alleged bad
act. For example, Rule 608(b) prohibits counsel from mentioning that a witness
was suspended or disciplined for the conduct that is the subject of impeachment,
when that conduct is offered only to prove the character of the witness. See
United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999) (emphasizing
that in attacking the defendant's character for truthfulness "the government
cannot make reference to Davis's forty-four day suspension or that Internal
Affairs found that he lied about" an incident because "[s]uch evidence would not
only be hearsay to the extent it contains assertion of fact, it would be
inadmissible extrinsic evidence under Rule 608(b)"). See also Stephen A.
Saltzburg, Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence,
7 Crim. Just. 28, 31 (Winter 1993) ("counsel should not be permitted to
circumvent the no-extrinsic-evidence provision by tucking a third person's
opinion about prior acts into a question asked of the witness who has denied the
act.").

For purposes of consistency the
term "credibility" has been replaced by the term "character for truthfulness" in
the last sentence of subdivision (b). The term "credibility" is also used in
subdivision (a). But the Committee found it unnecessary to substitute "character
for truthfulness" for "credibility" in Rule 608(a), because subdivision (a)(1)
already serves to limit impeachment to proof of such character.

Rules 609(a) and 610 also use
the term "credibility" when the intent of those Rules is to regulate impeachment
of a witness' character for truthfulness. No inference should be derived from
the fact that the Committee proposed an amendment to Rule 608(b) but not to
Rules 609 and 610.

Note by Federal Judicial Center

The rule enacted by the Congress is the rule prescribed by
the Supreme Court, changed only by amending the second sentence of subdivision
(b). The sentence as prescribed by the Court read: "They may, however, if
probative of truthfulness or untruthfulness and not remote in time, by inquired
into on cross-examination of the witness himself or on cross-examination of a
witness who testifies to his character for truthfulness or untruthfulness." The
effect of the amendments was to delete the phrase "and not remove in time," to
add the phrase "in the discretion of the court," and otherwise only to clarify
the meaning of the sentence. The reasons for the amendments are stated in the
Report of the House Committee on the Judiciary, set forth below. See also Note
to Rule 405(a) by Federal Judicial Center, supra.

Advisory Committee’s Note

Subdivision (a). In Rule 404(a) the general position is
taken that character evidence is not admissible for the purpose of proving that
the person acted in conformity therewith, subject, however, to several
exceptions, one of which is character evidence of a witness as bearing upon his
credibility. The present rule develops that exception.

In accordance with the bulk of judicial authority, the
inquiry is strictly limited to character for veracity, rather than allowing
evidence as to character generally. The result is to sharpen relevancy, to
reduce surprise, waste of time and confusion, and to make the lot of the witness
somewhat less unattractive. McCormick § 44.

The use of opinion and reputation evidence as means of
proving the character of witnesses is consistent with Rule 405(a). While the
modern practice has purported to exclude opinion, witnesses who testify to
reputation seem in fact often to be giving their opinions, disguised somewhat
misleadingly as reputation. See McCormick § 44. And even under the modern
practice, a common relaxation has allowed inquiry as to whether the witnesses
would believe the principal witness under oath. United States v. Walker, 313
F.2d 236 (6th Cir. 1963), and cases cited therein; McCormick § 44, pp. 94-95, n.
3.

Character evidence in support of credibility is admissible
under the rule only after the witness’ character has first been attacked, as has
been the case at common law. Maguire, Weinstein, et al., Cases on Evidence 295
(5th ed. 1965); McCormick § 49, p. 105; 4 Wigmore § 1104. The enormous needless
consumption of time which a contrary practice would entail justifies the
limitation. Opinion or reputation that the witness is untruthful specifically
qualifies as an attack under the rule, and evidence of misconduct, including
conviction of crime, and of corruption also fall within this category. Evidence
of bias or interest does not. McCormick § 49; 4 Wigmore §§ 1106, 1107. Whether
evidence in the form of contradiction is an attack upon the character of the
witness must depend upon the circumstances. McCormick § 49. Cf. 4 Wigmore
§§ 1108, 1109.

As to the use of specific instances on direct by an opinion
witness, see the Advisory Committee’s Note to Rule 405, supra.

Subdivision (b). In conformity with Rule 405, which
forecloses use of evidence of specific incidents as proof in chief of character
unless character is an issue in the case, the present rule generally bars
evidence of specific instances of conduct of a witness for the purpose of
attacking or supporting his credibility. There are, however, two exceptions: (1)
specific instances are provable when they have been the subject of criminal
conviction, and (2) specific instances may be inquired into on cross-examination
of the principal witness or of a witness giving an opinion of his character for
truthfulness.

(1) Conviction of crime as a technique of impeachment is
treated in detail in Rule 609, and here is merely recognized as an exception to
the general rule excluding evidence of specific incidents for impeachment
purposes.

(2) Particular instances of conduct, though not the subject
of criminal conviction, may be inquired into on cross-examination of the
principal witness himself or of a witness who testifies concerning his character
for truthfulness. Effective cross-examination demands that some allowance be
made for going into matters of this kind, but the possibilities for abuse are
substantial. Consequently safeguards are erected in the form of specific
requirements that the instances inquired into be probative of truthfulness or
its opposite.... Also, the overriding protection of Rule 403 requires that
probative value not be outweighed by danger of unfair prejudice, confusion of
issues, or misleading the jury, and that of Rule 611 bars harassment and undue
embarrassment.

The final sentence constitutes a rejection of the doctrine of
such cases as People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950), that any past
criminal act relevant to credibility may be inquired into on cross-examination,
in apparent disregard of the privilege against self-incrimination. While it is
clear that an ordinary witness cannot make a partial disclosure of incriminating
matter and then invoke the privilege on cross-examination, no tenable contention
can be made that merely by testifying he waives his right to foreclose inquiry
on cross-examination into criminal activities for the purpose of attacking his
credibility. So to hold would reduce the privilege to a nullity. While it is
true that an accused, unlike an ordinary witness, has an option whether to
testify, if the option can be exercised only at the price of opening up inquiry
as to any and all criminal acts committed during his lifetime, the right to
testify could scarcely be said to possess much vitality. In Griffin v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed. 2d 106 (1965), the Court held
that allowing comment on the election of an accused not to testify exacted a
constitutionally impermissible price, and so here. While no specific provision
in terms confers constitutional status on the right of an accused to take the
stand in his own defense, the existence of the right is so completely recognized
that a denial of it or substantial infringement upon it would surely be of due
process dimensions. See Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.
Ed. 2d 783 (1961); McCormick § 131; 8 Wigmore § 2276 (McNaughton Rev. 1961). In
any event, wholly aside from constitutional considerations, the provision
represents a sound policy.

Report of House Committee on the Judiciary

The second sentence of Rule 608(b) as submitted by the Court
permitted specific instances of misconduct of a witness to be inquired into on
cross-examination for the purpose of attacking his credibility, if probative of
truthfulness or untruthfulness, "and not remote in time." Such cross-examination
could be of the witness himself or of another witness who testifies as to "his"
character for truthfulness or untruthfulness.

The Committee amended the Rule to emphasize the discretionary
power of the court in permitting such testimony and deleted the reference to
remoteness in time as being unnecessary and confusing (remoteness from time of
trial or remoteness from the incident involved?) As recast, the Committee
amendment also makes clear the antecedent of "his" in the original Court
proposal.

The amendment provides that
Rule 609(a)(2) mandates the admission of evidence of a conviction only when the
conviction required the proof of (or in the case of a guilty plea, the admission
of) an act of dishonesty or false statement. Evidence of all other convictions
is inadmissible under this subsection, irrespective of whether the witness
exhibited dishonesty or made a false statement in the process of the commission
of the crime of conviction. Thus, evidence that a witness was convicted for a
crime of violence, such as murder, is not admissible under Rule 609(a)(2), even
if the witness acted deceitfully in the course of committing the crime.

The amendment is meant to give
effect to the legislative intent to limit the convictions that are to be
automatically admitted under subdivision (a)(2). The Conference Committee
provided that by "dishonesty and false statement" it meant "crimes such as
perjury, subornation of perjury, false statement, criminal fraud, embezzlement,
or false pretense, or any other offense in the nature of crimen falsi,
the commission of which involves some element of deceit, untruthfulness, or
falsification bearing on the [witness's] propensity to testify truthfully."
Historically, offenses classified as crimina falsi have included only
those crimes in which the ultimate criminal act was itself an act of deceit.
See Green, Deceit and the Classification of Crimes: Federal Rule of
Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J.
Crim. L. & Criminology 108
(2000).

Evidence of crimes in the
nature of crimina falsi must be admitted under Rule 609(a)(2), regardless
of how such crimes are specifically charged. For example, evidence that a
witness was convicted of making a false claim to a federal agent is admissible
under this subdivision regardless of whether the crime was charged under a
section that expressly references deceit (e.g., 18 U.S.C. § 1001, Material
Misrepresentation to the Federal Government) or a section that does not (e.g.,
18 U.S.C. § 1503, Obstruction of Justice).

The amendment requires that the
proponent have ready proof that the conviction required the factfinder to find,
or the defendant to admit, an act of dishonesty or false statement. Ordinarily,
the statutory elements of the crime will indicate whether it is one of
dishonesty or false statement. Where the deceitful nature of the crime is not
apparent from the statute and face of the judgment--as, for example, where the
conviction simply records a finding of guilt for a statutory offense that does
not reference deceit expressly--a proponent may offer information such as an
indictment, a statement of admitted facts, or jury instructions to show that the
factfinder had to find, or the defendant had to admit, an act of dishonesty or
false statement in order for the witness to have been convicted. Cf. Taylor
v. United States, 495 U.S. 575, 602 (1990)(providing that a trial court may
look to a charging instrument or jury instructions to ascertain the nature of a
prior offense where the statute is insufficiently clear on its face); Shepard
v. United States, 125 S. Ct. 1254 (2005)(the inquiry to determine whether a
guilty plea to a crime defined by a nongeneric statute necessarily admitted
elements of the generic offense was limited to the charging document's terms,
the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the
defendant, or a comparable judicial record). But the amendment does not
contemplate a "mini-trial" in which the court plumbs the record of the previous
proceeding to determine whether the crime was in the nature of crimen falsi.

The amendment also substitutes
the term "character for truthfulness" for the term "credibility" in the first
sentence of the Rule. The limitations of Rule 609 are not applicable if a
conviction is admitted for a purpose other than to prove the witness's character
for untruthfulness. See, e.g., United States v. Lopez, 979 F.2d 1024 (5th
Cir. 1992)(Rule 609 was not applicable where the conviction was offered for
purposes of contradiction). The use of the term "credibility" in subsection (d)
is retained, however, as that subdivision is intended to govern the use of a
juvenile adjudication for any type of impeachment.

Advisory Committee’s Note to 1990 Amendment

The amendment to Rule 609(a) makes two changes in the rule.
The first change removes from the rule the limitation that the conviction may
only be elicited during cross-examination, a limitation that virtually every
circuit has found to be inapplicable. It is common for witnesses to reveal on
direct examination their convictions to "remove the sting" of the impeachment.
See e.g., United States v. Bad Cob, 560 F.2d 877 8th Cir. 1977). The amendment
does not contemplate that a court will necessarily permit proof of prior
convictions through testimony, which might be time-consuming and more
prejudicial than proof through a written record. Rules 403 and 611(a) provide
sufficient authority for the court to protect against unfair or disruptive
methods of proof.

The second change effected by the amendment resolves an
ambiguity as to the relationship of Rules 609 and 403 with respect to
impeachment of witnesses other than the criminal defendant. See, Green v. Bock
Laundry Machine Co., [490 U.S. 504, 109 S.Ct. 1981, 104 L. Ed. 2d 557] (1989).
The amendment does not disturb the special balancing test for the criminal
defendant who chooses to testify. Thus, the rule recognizes that, in virtually
every case in which prior convictions are used to impeach the testifying
defendant, the defendant faces a unique risk of prejudice—i.e., the danger that
convictions that would be excluded under Fed. R. Evid. 404 will be misused by a
jury as propensity evidence despite their introduction solely for impeachment
purposes. Although the rule does not forbid all use of convictions to impeach a
defendant, it requires that the government show that the probative value of
convictions as impeachment evidence outweighs their prejudicial effect.

Prior to the amendment, the rule appeared to give the
defendant the benefit of the special balancing test when defense witnesses other
than the defendant were called to testify. In practice, however, the concern
about unfairness to the defendant is most acute when the defendant’s own
convictions are offered as evidence. Almost all of the decided cases concern
this type of impeachment, and the amendment does not deprive the defendant of
any meaningful protection, since Rule 403 now clearly protects against unfair
impeachment of any defense witness other than the defendant. There are cases in
which a defendant might be prejudiced when a defense witness is impeached. Such
cases may arise, for example, when the witness bears a special relationship to
the defendant such that the defendant is likely to suffer some spill-over effect
from the impeachment of the witness.

The amendment also protects other litigants from unfair
impeachment of their witnesses. The danger of prejudice from the use of prior
convictions is not confined to criminal defendants. Although the danger that
prior convictions will be misused as character evidence is particularly acute
when the defendant is impeached, the danger exists in other situations as well.
The amendment reflects the view that it is desirable to protect all litigants
from the unfair use of prior convictions, and that the ordinary balancing test
of Rule 403, which provides that evidence shall not be excluded unless its
prejudicial effect substantially outweighs its probative value, is appropriate
for assessing the admissibility of prior convictions for impeachment of any
witness other than a criminal defendant.

Fewer decided cases address the question whether Rule 609(a)
provides any protection against unduly prejudicial prior convictions used to
impeach government witnesses. Some courts have read Rule 609(a) as giving the
government no protection for its witnesses. See, e.g., United States v. Thorne,
547 F.2d 56 (8th Cir. 1976); United States v. Nevitt, 563 F.2d 406 (9th Cir.
1977), cert. denied, 444 U.S. 847, 100 S.Ct. 95, 62 L. Ed. 2d 61 (1979). This
approach also is rejected by the amendment. There are cases in which impeachment
of government witnesses with prior convictions that have little, if anything, to
do with credibility may result in unfair prejudice to the government’s interest
in a fair trial and unnecessary embarrassment to a witness. Fed. R. Evid. 412
already recognizes this and excluded certain evidence of past sexual behavior in
the context of prosecutions for sexual assaults.

The amendment applies the general balancing test of Rule 403
to protect all litigants against unfair impeachment of witnesses. The balancing
test protects civil litigants, the government in criminal cases, and the
defendant is a criminal case who calls other witnesses. The amendment addresses
prior convictions offered under Rule 609, not for other purposes, and does not
run afoul, therefore, of Davis v. Alaska, 4157 U.S. 308, 94 S.Ct. 1105, 39 L.
Ed. 2d 347 (1974). Davis involved the use of a prior juvenile adjudication not
to prove a past law violation, but to prove bias. The defendant in a criminal
case has the right to demonstrate the bias of a witness and to be assured a fair
trial, but not to unduly prejudice a trier of fact. See generally Rule 412. In
any case in which the trial court believes that confrontation rights require
admission of impeachment evidence, obviously the Constitution would take
precedence over the rule.

The probability that prior convictions of an ordinary
government witness will be unduly prejudicial is low in most criminal cases.
Since the behavior of the witness is not the issue in dispute in most cases,
there is little chance that the trier of fact will misuse the convictions
offered as impeachment evidence as propensity evidence. Thus, trial courts will
be skeptical when the government objects to impeachment of its witnesses with
prior convictions. Only when the government is able to point to a real danger of
prejudice that is sufficient to outweigh substantially the probative value of
the conviction of impeachment purposes will the conviction be excluded.

The amendment continues to divide subdivision (a) into
subsections (1) and (2) thus facilitating retrieval under current computerized
research programs which distinguish the two provisions. The Committee
recommended no substantive change in subdivisions (a)(2), even though some cases
raise a concern about the proper interpretation of the words "dishonesty or
false statement." These words were used but not explained in the original
Advisory Committee Note accompanying Rule 609. Congress extensively debated the
rule, and the report of the House and Senate Conference Committee states that "[b]y
the phrase ‘dishonesty and false statement,’ the Conference means crimes such as
perjury, subordination of perjury, false statement, criminal fraud,
embezzlement, or false pretense, or any other offense in the nature of crimen
falsi, commission of which involves some element of deceit, untruthfulness, or
falsification bearing on the accused’s propensity to testify truthfully." The
Advisory Committee concluded that the Conference Report provides sufficient
guidance to trial courts and that no amendment is necessary, notwithstanding
some decisions that take an unduly broad view of "dishonesty," admitting
convictions such as for bank robbery or bank larceny. Subsection (a)(2)
continues to apply to any witness, including a criminal defendant.

Finally, the Committee determined that it was unnecessary to
add to the rule language stating that, when a prior conviction is offered under
Rule 609, the trial court is to consider the probative value of the prior
conviction for impeachment, not for other purposes. The Committee concluded that
the title of the rule, its first sentence, and its placement among the
impeachment rules clearly establish that evidence offered under Rule 609 is
offered only for purposes of impeachment.

Note by Federal Judicial Center (Concerning Original Version
of Rule 609)

Subdivision (a) of the rule prescribed by the Supreme Court
was revised successively in the House, in the Senate, and in the Conference.

Subdivision (b) of the rule prescribed by the Supreme Court
was also revised successively in the House, in the Senate, and in the
Conference.

Subdivision (c) enacted by the Congress is the subdivision
prescribed by the Supreme Court, with amendments and reasons therefor stated in
the Report of the House committee on the Judiciary, set forth below.

Subdivision (d) enacted by the Congress is the subdivision
prescribed by the Supreme Court, amended in the second sentence by substituting
"court" in place of "judge" and by adding the phrase "in a criminal case."

Subdivision (e) enacted by the Congress is the subdivision
prescribed by the Supreme Court without change.

Advisory Committee’s Note

As a means of impeachment, evidence of conviction of crime is
significant only because it stands as proof of the commission of the underlying
criminal act. There is little dissent from the general proposition that at least
some crimes are relevant to credibility but much disagreement among the cases
and commentators about which crimes are usable for this purpose. See McCormick
§ 43; 2 Wright, Federal Practice and Procedure: Criminal § 416 (1969). The
weight of traditional authority has been to allow use of felonies generally,
without regard to the nature of the particular offense. This is the view
accepted by Congress in the 1970 amendment of § 14-305 of the District of
Columbia Code, P.L. 91-358, 84 Stat. 473. Uniform Rule 21 and Model Code Rule
106 permit only crimes involving "dishonesty or false statement." Others have
thought that the trial judge should have discretion to exclude convictions if
the probative value of the evidence of the crime is substantially outweighed by
the danger of unfair prejudice. Luck v. United States, 121 U. S. App. D. C. 151,
348 F.2d 763 (1965); McGowan, Impeachment of Criminal Defendants by Prior
Convictions, 1970 Law & Soc. Order 1....

The proposed rule incorporates certain basic safeguards, in
terms applicable to all witnesses but of particular significance to an accused
who elects to testify. These protections include the imposition of definite time
limitations, giving effect to demonstration rehabilitation, and generally
excluding juvenile adjudications.

Subdivision (a). For purposes of impeachment, crimes are
divided into two categories by the rule: (1) those of what is generally regarded
as felony grade, without particular regard to the nature of the offense, and (2)
those involving dishonesty or false statement, without regard to the grade of
the offense. Provable convictions are not limited to violations of federal law.
By reason of our constitutional structure, the federal catalog of crimes is far
from being a complete one, and resort must be had to the laws of the states for
the specification of many crimes. For example, simple theft as compared with
theft from interstate commerce. Other instances of borrowing are the
Assimilative Crimes Act, making the state law of crimes applicable to the
special territorial and maritime jurisdiction of the United States, 18 U.S.C.
§ 13, and the provision of the Judicial Code disqualifying persons as jurors on
the grounds of state as well as federal convictions, 28 U.S.C. § 1865. For
evaluation of the crime in terms of seriousness, reference is made to the
congressional measurement of felony (subject to imprisonment in excess of one
year) rather than adopting state definitions which vary considerably. See 28
U.S.C. § 1865, supra, disqualifying jurors for conviction in state or federal
court of crime punishable by imprisonment for more than one year.

Report of the House Committee on the Judiciary

Rule 609(a) as submitted by the Court was modeled after
Section 133(a) of Public Law 91-358, 14 D.C.Code 305(b)(1), enacted in 1970. The
Rule provided that:

For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime is admissible but
only if the crime (1) was punishable by death or imprisonment in excess of
one year under the law under which he was convicted or (2) involved
dishonesty or false statement regardless of the punishment.

As reported to the Committee by the Subcommittee, Rule 609(a)
was amended to read as follows:

For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime is admissible only
if the crime (1) was punishable by death or imprisonment in excess of one
year, unless the court determines that the danger of unfair prejudice
outweighs the probative value of the evidence of the conviction, or (2)
involved dishonesty or false statement.

In full committee, the provision was amended to permit attack
upon the credibility of a witness by prior conviction only if the prior crime
involved dishonesty or false statement. While recognizing that the prevailing
doctrine in the federal courts and in most States allows a witness to be
impeached by evidence of prior felony convictions without restriction as to
type, the Committee was of the view that, because of the danger of unfair
prejudice in such practice and the deterrent effect upon an accused who might
wish to testify, and even upon a witness who was not the accused,
cross-examination by evidence of prior conviction should be limited to those
kinds of convictions bearing directly on credibility, i.e., crimes involving
dishonesty or false statement.

Report of the Senate Committee on the Judiciary

As proposed by the Supreme Court, the rule would allow the
use of prior convictions to impeach if the crime was a felony or a misdemeanor
if the misdemeanor involved dishonesty or false statement. As modified by the
House, the rule would admit prior convictions for impeachment purposes only if
the offense, whether felony or misdemeanor, involved dishonesty or false
statement.

The committee has adopted a modified version of the
House-passed rule. In your committee’s view, the danger of unfair prejudice is
far greater when the accused, as opposed to other witnesses, testifies, because
the jury may be prejudiced not merely on the question of credibility but also on
the ultimate question or guilt or innocence. Therefore, with respect to
defendants, the committee agreed with the House limitation that only offenses
involving false statement or dishonesty may be used. By that phrase, the
committee means crimes such as perjury or subornation of perjury, false
statement, criminal fraud, embezzlement or false pretense, or any other offense,
in the nature of crimen falsi the commission of which involves some element of
untruthfulness, deceit or falsification bearing on the accused’s propensity to
testify truthfully.

With respect to other witnesses, in addition to any prior
conviction involving false statement or dishonesty, any other felony may be used
to impeach if, and only if, the court finds that the probative value of such
evidence outweighs the prejudicial effect against the party offering that
witness.

Notwithstanding this provision, proof of any prior offense
otherwise admissible under rule 404 could still be offered for the purposes
sanctioned by that rule. Furthermore, the committee intends that notwithstanding
this rule, a defendant’s misrepresentation regarding the existence or nature of
prior convictions may be met by rebuttal evidence, including the record of such
prior convictions. Similarly, such records may be offered to rebut
representations made by the defendant regarding his attitude toward or
willingness to commit a general category of offense, although denials or other
representations by the defendant regarding the specific conduct which forms the
basis of the charge against him shall not make prior convictions admissible to
rebut such statement.

In regard to either type of representation, of course, prior
convictions may be offered in rebuttal only if the defendant’s statement is made
in response to defense counsel’s questions or is made gratuitously in the course
of cross-examination. Prior convictions may not be offered as rebuttal evidence
if the prosecution has sought to circumvent the purpose of this rule by asking
questions which elicit such representations from the defendant.

One other clarifying amendment has been added to this
subsection, that is, to provide that the admissibility of evidence of a prior
conviction is permitted only upon cross-examination of a witness. It is not
admissible if a person does not testify. It is to be understood, however, that a
court record of a prior conviction is admissible to prove that conviction if the
witness has forgotten or denies its existence.

Conference Report

The House bill provides that the credibility of a witness can
be attacked by prior conviction of a crime only if the crime involves dishonesty
or false statement. The Senate amendment provides that a witness’ credibility
may be attacked if the crime (1) was punishable by death or imprisonment in
excess of one year under the law under which he was convicted and the court
determines that the probative value of the conviction outweighs its prejudicial
effect to the defendant; or (2) involved dishonesty or false statement
regardless of the punishment.

By the phrase "dishonesty and false statement" the Conference
means crimes such a perjury or subornation of perjury, false statement, criminal
fraud, embezzlement, or false pretense, or any other offense in the nature of
crimen falsi, the commission of which involves some element of deceit,
untruthfulness, or falsification bearing on the accused’s propensity to testify
truthfully.

The admission of prior convictions involving dishonesty and
false statement is not within the discretion of the Court. Such convictions are
peculiarly probative of credibility and, under this rule, are always to be
admitted. Thus, judicial discretion granted with respect to the admissibility of
other prior convictions is not applicable to those involving dishonesty or false
statement.

With regard to the discretionary standard established by
paragraph (1) of rule 609(a), the Conference determined that the prejudicial
effect to be weighed against the probative value of the conviction is
specifically the prejudicial effect to the defendant. The danger of
prejudice to a witness other than the defendant (such as injury to the witness’
reputation in his community) was considered and rejected by the Conference as an
element to be weighed in determining admissibility. It was the judgment of the
Conference that the danger of prejudice to a nondefendant witness is outweighed
by the need for the trier of fact to have as much relevant evidence on the issue
of credibility a possible. Such evidence should only be excluded where it
presents a danger of improperly influencing the outcome of the trial by
persuading the trier of fact to convict the defendant on the basis of his prior
criminal record.

Advisory Committee’s Note

Subdivision (b). Few statutes recognize a time limit on
impeachment by evidence of conviction. However, practical considerations of
fairness and relevancy demand that some boundary be recognized. See Ladd,
Credibility Tests–Current Trends, 89 U. Pa. L. Rev. 166, 176-177 (1940). This
portion of the rule is derived from the proposal advanced in Recommendation
Proposing Evidence Code, § 788(5), p. 142, Cal. Law. Rev. Comm’n (1965), though
not adopted. See California Evidence Code § 788.

Report of the House Committee on the Judiciary

Rule 609(b) as submitted by the Court was modeled after
Section 133(a) of Public Law 91-358, 14 D.C.Code 305(b)(2)(B), enacted in 1970.
The Rule provided:

Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date of
the release of the witness from confinement imposed for his most recent
conviction, or the expiration of the period of his parole, probation, or
sentence granted or imposed with respect to his most recent conviction,
whichever is the later date.

Under this formulation, a witness’ entire past record of
criminal convictions could be used for impeachment (provided the conviction met
the standard of subdivision (a)), if the witness had been most recently released
from confinement, or the period of his parole or probation had expired, within
ten years of the conviction.

The Committee amended this Rule to read in the text of the
1971 Advisory Committee version to provide that upon the expiration of ten years
from the date of a conviction of a witness, or of his release from confinement
for that offense, that conviction may no longer be used for impeachment. The
Committee was of the view that after ten years following a person’ release from
confinement (or from the date of his conviction) the probative value of the
conviction with respect to that person’s credibility diminished to a point where
it should no longer be admissible.

Report of the Senate Committee on the Judiciary

Although convictions over ten years old generally do not have
much probative value, there may be exceptional circumstances under which the
conviction substantially bears on the credibility of the witness. Rather than
exclude all convictions over 10 years old, the committee adopted an amendment in
the form of a final clause to the section granting the court discretion to admit
convictions over 10 years old, but only upon a determination by the court that
the probative value of the convictions supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.

It is intended that convictions over 10 years old will be
admitted very rarely and only in exceptional circumstances. The rules provide
that the decision be supported by specific facts and circumstances thus
requiring the court to make specific findings on the record as to the particular
facts and circumstances it has considered in determining that the probative
value of the conviction substantially outweighs its prejudicial effect. It is
expected that, in fairness, the court will give the party against whom the
conviction is introduced a full and adequate opportunity to contest its
admission.

Conference Report

The House bill provides in subsection (b) that evidence of
conviction of a crime may not be used for impeachment purposes under subsection
(1) if more than ten years have elapsed since the date of the conviction or the
date the witness was released from confinement imposed for the conviction,
whichever is later. The Senate amendment permits the use of convictions older
than ten years, if the court determines, in the interests of justice, that the
probative value of the conviction, supported by specific facts and
circumstances, substantially outweighs it prejudicial effect.

The Conference adopts the Senate amendment with an amendment
requiring notice by a party that he intends to request that the court allow him
to use a conviction older than ten years. The Conferees anticipate that a
written notice, in order to give the adversary a fair opportunity to contest the
use of the evidence, will ordinarily include such information as the date of the
conviction, the jurisdiction, and the offense or statute involved. In order to
eliminate the possibility that the flexibility of this provision may impair the
ability of a party-opponent to prepare for trial, the Conferees intend that the
notice provision operate to avoid surprise.

Advisory Committee’s Note

Subdivision (c). A pardon or its equivalent granted
solely for the purpose of restoring civil rights lost by virtue of a conviction
has no relevance to an inquiry into character. If, however, the pardon or other
proceeding is hinged upon a showing of rehabilitation the situation is
otherwise. The result under the rule is to render the conviction inadmissible.
The alternative of allowing the evidence both of the conviction and the
rehabilitation has not been adopted for reasons of policy, economy of time, and
difficulties of evaluation.

Pardons based on innocence have the effect, of course, of
nullifying the conviction ab initio.

Report of House Committee on the Judiciary

Rule 609(c) as submitted by the Court provided in part that
evidence of a witness’ prior conviction is not admissible to attack his
credibility if the conviction was the subject of pardon, annulment, or other
equivalent procedure, based on a showing of rehabilitation, and the witness has
not been convicted of a subsequent crime. The Committee amended the Rule to
provide that the "subsequent" crime must have been "punishable by death or
imprisonment in excess of one year", on the ground that a subsequent conviction
of an offense not a felony is insufficient to rebut the finding that the witness
has been rehabilitated. The Committee also intends that the words "based on a
finding of the rehabilitation of the person convicted" apply not only to
"certificate of rehabilitation, or other equivalent procedure," but also to
"pardon" and "annulment."

Advisory Committee’s Note

Subdivision (d). The prevailing view has been that a
juvenile adjudication is not usable for impeachment. Thomas v. United States, 74
App. D.C. 167, 121 F. 2d 905 (1941); Cotton v. United States, 355 F. 2d 480
(10th Cir. 1966). This conclusion was based upon a variety of circumstances. By
virtue of its informality, frequently diminished quantum of required proof, and
other departures form accepted standards for criminal trial sunder the theory of
parens patriae, the juvenile adjudication was considered to lack the
precision and general probative value of the criminal conviction. While In re
Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), no doubt eliminates
these characteristics insofar as objectionable, other obstacles remain.
Practical problems of administration are raised by the common provisions in
juvenile legislation that records be kept confidential and that they be
destroyed after a short time. While Gault was skeptical as to the
realities of confidentiality of juvenile records, it also saw no constitutional
obstacles to improvement. 387 U.S. at 25, 87 S. Ct. 1428. See also Note, Rights
and Rehabilitation in the Juvenile Courts, 67 Colum. L. Rev. 281, 289 (1967). In
addition, policy considerations much akin to those which dictate exclusion of
adult convictions after rehabilitation has been established strongly suggest a
rule of excluding juvenile adjudications. Admittedly, however, the
rehabilitative process may in a given case be a demonstrated failure, or the
strategic importance of a given witness may be so great as to require the
overriding of general policy in the interests of particular justice. See Giles
v. Maryland, 286 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967). Wigmore was
outspoken in his condemnation of the disallowance of juvenile adjudications to
impeach, especially when the witness is the complainant is a case of molesting a
minor. 1 Wigmore § 196; 3 id. §§ 924a. 980. The rule recognizes discretion in
the judge to effect an accommodation among those various factors by departing
from the general principle of exclusion. In deference to the general pattern and
policy of juvenile statutes, however, no discretion is accorded when the witness
is the accused in a criminal case.

While the rule forecloses inquiry into the religious beliefs
or opinions of a witness for the purpose of showing that his character for
truthfulness is affected by their nature, an inquiry for the purpose of showing
interest or bias because of them is within the prohibition. Thus disclosure of
affiliation with a church which is a party to the litigation would be allowable
under the rule. Cf. Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203 91938). The same
effect, though less specifically worded, is California Evidence Code § 789. See
3 Wigmore § 396.

Subdivision (a) of the rule enacted by the Congress is the
subdivision prescribed by the Supreme Court, amended only by substituting
"court" in place of "judge."

Subdivision (b) of the rule enacted by the Congress is
substantially difference from the subdivision prescribed by the Supreme Court.
The nature of the changes and the reasons therefore are stated in the Report of
the House Committee on the Judiciary, set forth below.

The first two sentences of subdivision (c) of the rule
enacted by the Congress are the same as prescribed by the Supreme Court. The
third sentence has been amended in the manner and for the reasons stated in the
Report of the House committee on the Judiciary, set forth below.

Advisory Committee’s Note

Subdivision (a). Spelling out detailed rules to govern
the mode and order of interrogating witnesses and presenting evidence is neither
desirable nor feasible. The ultimate responsibility for the effective working of
the adversary system rests with the judge. The rule sets forth the objectives
which he should seek to attain.

Item (1) restates in broad terms the power and obligation of
the judge as developed under common law principles. It covers such concerns as
whether testimony shall be in the form of a free narrative or responses to
specific questions, McCormick § 5, the order of calling witnesses and presenting
evidence, 6 Wigmore § 1867, the use of demonstrative evidence, McCormick § 179,
and the many other questions arising during the course of a trial which can be
solved only by the judge’s common sense and fairness in view of the particular
circumstances.

Item (2) is addressed to avoidance of needless consumption of
time, a matter of daily concern in the disposition of cases. A companion piece
is found in the discretion vested in the judge to exclude evidence as a waste of
time in Rule 403(b).

Item (3) calls for a judgment under the particular
circumstances whether interrogation tactics entail harassment or undue
embarrassment. Pertinent circumstances include the importance of the testimony,
the nature of the inquire, its relevance to credibility, waste of time, and
confusion. McCormick § 42. In Alford v. United States, 282 U.S. 687, 694, 51 S.
Ct. 218, 220, 75 L. Ed. 624 (1932), the Court pointed out that, while the trial
judge should protect the witness from questions which "go beyond the bounds of
proper cross-examination merely to harass, annoy or humiliate," this protection
by no means forecloses efforts to discredit the witness. Reference to the
transcript of the prosecutor’s cross-examination in Berger v. United States, 295
U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), serves to lay at rest any doubts
as to the need for judicial control in this area.

The inquiry into specific instances of conduct of a witness
allowed under Rule 608(b), is, of course, subject to this rule.

Subdivision (b). [This note is from the 1969 Preliminary
Draft of the Federal Rules of Evidence.] The tradition in the federal courts and
in numerous state courts has been to limit the scope of cross-examination to
matters testified to on direct, plus matters bearing upon the credibility of the
witness. Various reasons have been advanced to justify the rule of limited
cross-examination. (1) A party vouches for his own witness but only to the
extent of maters elicited on direct. Resurrection Gold Mining Co. v. Fortune
Gold Mining Co., 129 Fed. 668, 675 (8th Cir. 1904), quoted in Maguire,
Weinstein, et al., Cases on Evidence 277, n. 38 (5th Ed. 1965). But the concept
of vouching is discredited, and Rule 6-07 [607] rejects it. (2) A party cannot
ask his own witness leading questions. This is a problem properly solved in
terms of what is necessary for a proper development of the testimony rather than
a mechanistic formula similar to the vouching concept. See discussion under
subdivision (c). (3) A practice of limited cross-examination promotes orderly
presentation of the case. Fince v. Weiner, 109 Conn. 616, 145 A. 31 (1929). In
the opinion of the Advisory Committee this latter reason has merit. It is
apparent, however, that the rule of limited cross-examination thus viewed
becomes an aspect of the judge’s general control over the mode and order of
interrogating witnesses and presenting evidence, to be administered as such. The
matter is not one in which involvement at the appellate level is likely to prove
fruitful. See, for example, Moyer v. Aetna Life Ins. Co., 126 F. 2d 141 (3d Cir.
1942). Butler v. New York Central R. Co., 253 F. 2d 281 (7th Cir. 1958); United
States v. Johnson, 285 F. 2d 35 (9th Cir. 1960); Union Automobile Indemnity
Ass’n v. Capitol Indemnity Ins. Co., 310 F. 2d 318 (7th Cir. 1962). In view of
these considerations, the rule is phrased in terms of a suggestion rather than a
mandate to the trial judge.

The qualification "as if on direct examination," applicable
when inquiry into additional matters is allowed is designed to terminate at that
point the asking of leading questions as a matter of right and to bring into
operation subdivision (c) of the rule.

The rule does not purport to determine the extent to which an
accused who elects to testify thereby waives his privilege against
self-incrimination. The question is a constitutional one, rather than a mere
matter of administering the trial. Under Simmons v. United States, 390 U.S. 377,
88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), no general waiver occurs when the
accused testifies on such preliminary matters as the validity of a search and
seizure or the admissibility of a confession. Rule 1-04(d) [104(d)], supra. When
he testifies on the merits, however, can he foreclose inquiry into an aspect or
element of the crime by avoiding it on direct? The affirmative answer given in
Tucker v. United States, 5 F.2d 818 (8th Cir. 1925), is inconsistent with the
description of the waiver as extending to "all other relevant facts" in Johnson
v. United States, 318 U.S. 189, 195, 63 S. Ct. 549, 552 87 L. Ed. 704 (1943).
See also Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589
(1958). The situation of an accused who desires to testify on some but not all
counts of a multiple-count indictment is one to be approached, in the first
instance at least, as a problem of severance under Rule 14 of the Federal Rules
of Criminal Procedure. Cross v. United States, 335 F. 2d 987 (D.C. Cir. 1964).
Cf. United States v. Baker, 262 F. Supp. 657, 686 (D.D.C. 1966). In all events,
the extent of the waiver of the privilege against self-incrimination ought not
to be determined as a by-product of a rule on scope of cross-examination.

Report of House Committee on the Judiciary

As submitted by the Court, Rule 611(b) provided:

A witness may be cross-examined on any matter relevant to
any issue in the case, including credibility. In the interests of justice,
the judge may limit cross-examination with respect to matters not testified
to on direct examination.

The Committee amended this provision to return to the rule
which prevails in the federal courts and thirty-nine State jurisdictions. As
amended, the Rule is in the text of the 1969 Advisory Committee draft. It limits
cross-examination to credibility and to matters testified to on direct
examination, unless the judge permits more, in which event the cross-examiner
must proceed as if on direct examination. This traditional rule facilitates
orderly presentation by each party at trial. Further, in light of existing
discovery procedures, there appears to be no need to abandon the traditional
rule.

Report of Senate Committee on the Judiciary

Rule 611(b) as submitted by the Supreme Court permitted a
broad scope of cross-examination: "cross-examination on any matter relevant to
any issue in the case" unless the judge, in the interests of justice, limited
the scope of cross-examination.

The House narrowed the Rule to the more traditional practice
of limiting cross-examination to the subject matter of direct examination (and
credibility), but with discretion in the judge to permit inquiry into additional
matters in situations where that would aid in the development of the evidence or
otherwise facilitate the conduct of the trial.

The committee agrees with the House amendment. Although there
are good arguments in support of broad cross-examination from perspectives of
developing all relevant evidence, we believe the factors of insuring an orderly
and predictable development of the evidence weigh in favor of the narrower rule,
especially when discretion is given to the trial judge to permit inquiry into
additional matters. The committee expressly approves this discretion and
believes it will permit sufficient flexibility allowing a broader scope of
cross-examination whenever appropriate.

The House amendment providing broader discretionary
cross-examination permitted inquiry into additional matters only as if on direct
examination. As a general rule, we concur with this limitation, however, we
would understand that this limitation would not preclude the utilization of
leading questions if the conditions of subsection (c) of this rule were met,
bearing in mind the judge’s discretion in any case to limit the scope of
cross-examination. [footnote omitted]

Further, the committee has received correspondence from
Federal judges commenting on the applicability of this rule to section 1407 of
title 28. It is the committee’s judgment that this rule as reported by the House
is flexible enough to provide sufficiently broad cross-examination in
appropriate situations in multidistrict litigation.

Advisory Committee’s Note

Subdivision (c). The rule continues the traditional view
that the suggestive powers of the leading question are as a general proposition
undesirable. Within this tradition, however, numerous exceptions have achieved
recognition: The witness who is hostile, unwilling, or biased; the child witness
or the adult with communication problems; the witness whose recollection is
exhausted; and undisputed preliminary matters. 3 Wigmore §§ 774-778. An almost
total unwillingness to reverse for infractions has been manifested by appellate
courts. See cases cited in 3 Wigmore § 770. The matter clearly falls within the
area of control by the judge over the mode and order of interrogation and
presentation and accordingly is phrased in words of suggestion rather than
command.

The rule also conforms to tradition in making the use of
leading questions on cross-examination a matter of right. The purpose of the
qualification "ordinarily" is to furnish a basis for denying the use of leading
questions when the cross-examination is cross-examination in form only and not
in fact, as for example the "cross-examination" of a party by his own counsel
after called by the opponent (savoring more of re-direct) or of an insured
defendant who proves to be friendly to the plaintiff.

The final sentence deals with categories of witnesses
automatically regarded and treated as hostile. Rule 43(b) of the Federal Rule of
civil Procedure has included only "an adverse party of an officer, director, or
managing agent of a public or private corporation or of a partnership or
association which is an adverse party." This limitation virtually to persons
whose statements would stand as admissions is believed to be an unduly narrow
concept for those who may safely be regarded as hostile without further
demonstration. See, for example, Maryland Casualty Co. v. Kador, 225 F. 2d 120
(5th Cir. 1955), and Degelos v. Fidelity and Casualty Co., 313 F. 2d 809 (5th
Cir. 1963), holding despite the language of Rule 43(b) that an insured fell
within it, though not a party in an action under the Louisiana direct action
statute. The phrase of the rule, "witness identified with" an adverse party, is
designed to enlarge the category of persons thus callable.

Report of House Committee on the Judiciary

The third sentence of Rule 611(c) as submitted by the Court
provided that:

In civil cases, a party is entitled to call an adverse
party or witness identified with him and interrogate by leading questions.

The Committee amended this Rule to permit leading questions
to be used with respect to any hostile witness, not only an adverse party or
person identified with such adverse party. The Committee also substituted the
word "When" for the phrase "In civil cases" to reflect the possibility that in
criminal cases a defendant may be entitled to call witnesses identified with the
government, in which event the Committee believed the defendant should be
permitted to inquire with leading questions.

Report of Senate Committee on the Judiciary

As submitted by the Supreme Court, the rule provided: "In
civil cases, a party is entitled to cal an adverse party or witness identified
with him and interrogate by leading questions."

The final sentence of subsection (c) was amended by the House
for the purpose of clarifying the fact that a "hostile witness"—that is a
witness who is hostile in fact—could be subject to interrogation by leading
questions. The rule as submitted by the Supreme Court declared certain witnesses
hostile as a matter of law and thus subject to interrogation by leading
questions without any showing of hostility in fact. These were adverse parties
or witnesses identified with adverse parties. However, the wording of the first
sentence of subsection (c) while generally prohibiting the use of leading
questions on direct examination, also provides "except as may be necessary to
develop his testimony." Further, the first paragraph of the Advisory Committee
note explaining the subsection makes clear that they intended that leading
questions could be asked of a hostile witness or a witness who was unwilling or
biased and even though that witness was not associated with an adverse party.
Thus, we question whether the House amendment was necessary.

However, concluding that it was not intended to affect the
meaning of the first sentence of the subsection and was intended solely to
clarify the fact that leading questions are permissible in the interrogation of
a witness, who is hostile in fact, the committee accepts that House amendment.

The final sentence of this subsection was also amended by the
House to cover criminal as well as civil cases. The committee accepts this
amendment, but notes that it may be difficult in criminal cases to determine
when a witness is "identified with an adverse party," and thus the rule should
be applied with caution.

The rule enacted by the Congress is the rule prescribed by
the Supreme Court, amended by substituting "court" in place of "judge," with
appropriate pronominal change, and in the first sentence by substituting "the
writing" in place of "it" before "produced," and by substituting the phrase "(1)
while testifying, or (2) before testifying if the court in its discretion
determines it is necessary in the interests of justice" in place of "before or
while testifying." The reasons for the latter amendment are stated in the Report
of the House Committee on the Judiciary, set forth below.

Advisory Committee’s Note

The treatment of writings used to refresh recollection while
on the stand is in accord with settled doctrine. McCormick § 9, p. 15. The bulk
of the case law has, however, denied the existence of any right to access by the
opponent when the writing is used prior to taking the stand, though the judge
may have discretion in the matter. Goldman v. United States, 316 U.S. 129, 62 S.
Ct. 993, 86 L. Ed. 1322 (1942); Needelman v. United States, 261 F.2d 802 (5th
Cir. 1958), cert. dismissed 362 U.S. 600, 80 S. Ct. 960, 4 L. Ed. 2d 980,
rehearing denied 363 U.S. 858, 80 S. Ct. 1606, 4 L. Ed. 2d 1739, Annot., 82
A.L.R. 2d 473, 562 and 7 A.L.R. 3d 181, 247. An increasing group of cases has
repudiated the distinction, People v. Scott, 29 Ill. 2d 97, 193 N. E. 2d 814
(1963); State v. Mucci, 25 N. J. 423, 136 A. 2d 761 (1957); State v. Hunt, 25 N.
J. 514, 138 A. 2d 1 (1958); State v. Deslovers, 40 R.I. 89, 100 A. 64 (1917),
and this position is believed to be correct. As Wigmore put it, "the risk of
imposition and the need of safeguard is just as great" in both situations. 3
Wigmore § 762, p. 111. To the same effect is McCormick § 9, p. 17.

The purpose of the phrase "for the purpose of testifying" is
to safeguard against using the rule as a pretext for wholesale exploration of an
opposing party’s files and to insure that access is limited only to those
writings which may fairly be said in fact to have an impact upon the testimony
of the witness.

The purpose of the rule is the same as that of the Jencks
statute, 18 U.S.C. § 3500: to promote the search of credibility and memory. The
same sensitivity to disclosure of government files may be involved; hence the
rule is expressly made subject to the statute, subdivision (a) of which
provides: "In any criminal prosecution brought by the United States, no
statement or report in the possession of the United States which was made by a
Government witness or prospective Government witness (other than the defendant)
shall be the subject of subpoena, discovery, or inspection until said witness
has testified on direct examination in the trial of the case." Items falling
within the purview of the statute are producible only as provided by its terms,
Palermo v. United States, 360 U.S. 343, 351, 79 S.Ct. 1217, 1224, 3 L. Ed. 2d
1287 (1959), and disclosure under the rule is limited similarly by the statutory
conditions. With this limitation in mind, some differences of application may be
noted. The Jencks statute applies only to statements of witnesses; the
rule is not so limited. The statute applies only to criminal cases; the rule
applies to all cases. The statute applies only to government witnesses; the
rules applies to all witnesses. The statute contains no requirement that the
statement be consulted for purposes of refreshment before or while testifying;
the rule so requires. Since many writings would qualify under either statute or
rule, a substantial overlap exists, but the identity of procedures makes this of
no importance.

The consequences of nonproduction by the government in a
criminal case are those of the Jencks statute, striking the testimony or
in exceptional cases a mistrial. 18 U.S.C. § 3500(d). In other cases these
alternatives are unduly limited, and such possibilities as contempt, dismissal,
finding issues against the offender, and the like are available. See Rule 16(g)
of the Federal Rules of Criminal Procedure and Rule 37(b) of the Federal Rules
of Civil Procedure for appropriate sanctions.

Report of the House Committee on the Judiciary

As submitted to Congress, Rule 612 provided that except as
set forth in 18 U.S.C. § 3500, if a witness uses a writing to refresh his memory
for the purpose of testifying, "either before or while testifying," an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness on it, and to introduce in evidence those portions
relating to the witness’ testimony. The Committee amended the Rule so as still
to require the production of writings used by a witness while testifying, but to
render the production of writings used by a witness to refresh his memory before
testifying discretionary with the court in the interests of justice, as is the
case under existing federal law. See Goldman v. United States, 316 U.S. 129, 62
S. Ct. 993, 86 L. Ed. 1322 (1942). The Committee considered that permitting an
adverse party to require the production of writings used before testifying could
result in fishing expeditions among a multitude of papers which a witness may
have used in preparing for trial.

The Committee intends that nothing in the Rule be construed
as barring the assertion of a privilege with respect to writings used by a
witness to refresh his memory.

The rule enacted by the Congress is the rule prescribed by
the Supreme Court, amended only by substitution "nor" in place of "or" in
subdivision (a).

Advisory Committee’s Note

Subdivision (a). The Queen’s Case, 2 Br. & B. 284, 129
Eng. Rep. 976 (1820), laid down the requirement that a cross-examiner, prior to
questioning the witness about this own prior statement in writing, must first
show it to the witness. Abolished by statute in the country of its origin, the
requirement nevertheless gained currency in the United States. The rule
abolishes this useless impediment, to cross-examination. Ladd, Some Observations
on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 246-247 (1967);
McCormick § 28; 4 Wigmore §§ 1259-1260. Both oral and written statements are
included.

The provision for disclosure to counsel is designed to
protect against unwarranted insinuations that a statement has been made when the
fact is to the contrary.

The rule does not defeat the application of Rule 1002
relating to production of the original when the contents of a writing are sought
to be proved. Nor does it defeat the application of Rule 26(b)(3) of the Rules
of Civil Procedure, as revised, entitling a person on request to a copy of his
own statement, though the operation of the latter may be suspended temporarily.

Subdivision (b). The familiar foundation requirement that
an impeaching statement first be shown to the witness before it can be proved by
extrinsic evidence is preserved but with some modifications. See Ladd, Some
Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 247
(1967). The traditional insistence that the attention of the witness be directed
to the statement on cross-examination is relaxed in favor of simply providing
the witness an opportunity to explain and the opposite party an opportunity to
examine on the statement, with no specification of any particular time or
sequence. Under this procedure, several collusive witnesses can be examined
before disclosure of a joint prior inconsistent statement. See comment to
California Evidence Code § 770. Also, dangers of oversight are reduced. See
McCormick § 37, p. 68.

In order to allow for such eventualities as the witness
becoming unavailable by the time the statement is discovered, a measure of
discretion is conferred upon the judge. Similar provisions are found in
California Evidence Code § 770 and New Jersey Evidence Rule 22(b).

Under principles of expression unius the rule does not
apply to impeachment by evidence of prior inconsistent conduct. The use of
inconsistent statements to impeach a hearsay declaration is treated in Rule 806.

Subdivision (a). While exercised more frequently in
criminal than in civil cases, the authority of the judge to call witnesses is
well established. McCormick § 8, p. 14; Maguire, Weinstein, et al., Cases on
Evidence 303-304 (5th Ed. 1965); 9 Wigmore § 2484. One reason for the practice,
the old rule against impeaching one’s own witness, no longer exists by virtue of
Rule 607, supra. Other reasons remain, however, to justify the continuation of
the practice of calling court’s witnesses. The right to cross-examine, with all
it implies, is assured. The tendency of juries to associate a witness with the
party calling him, regardless of technical aspects of vouching, is avoided. And
the judge is not imprisoned within the case as made by the parties.

Subdivision (b). The authority of the judge to question
witnesses is also well established. McCormick § 8, pp. 12-13; Maguire,
Weinstein, et al., Cases on Evidence 737-739 (5th ed. 1965); 3 Wigmore § 784.
The authority is, of course, abused when the judge abandons his proper role and
assumes that of advocate, but the manner in which interrogation should be
conducted and the proper extent of its exercise are not susceptible of
formulation of a rule. The omission in no sense precludes courts of review from
continuing to reverse for abuse.

Subdivision (c). The provision relating to objections is
designed to relieve counsel of the embarrassment attendant upon objecting to
questions by the judge in the presence of the jury, while at the same time
assuring that objections are made in apt time to afford the opportunity to take
possible corrective measures. Compare the "automatic" objection feature of Rule
605 when the judge is called as a witness.

The amendment is in response to the Victim’s Rights and
Restitution Act of 1990, 42 U.S.C.A. § 10606, and the Victim Rights
Clarification Act of 1997, 18 U.S.C.A. § 3510.

Advisory Committee’s Note

The efficacy of excluding or sequestering witnesses has long
been recognized as a means of discouraging and exposing fabrication, inaccuracy,
and collusion. 6 Wigmore §§ 1837-1838. The authority of the judge is admitted,
the only question being whether the matter is committed to his discretion or one
of right. The rule takes the latter position. No time is specified for making
this request.

Several categories of persons are excepted. (1) Exclusion of
persons who are parties would raise serious problems of confrontation and due
process. Under accepted practice they are not subject to exclusion. 6 Wigmore
§ 1841. (2) As the equivalent of the right of a natural-person party to be
present, a party which is not a natural person is entitled to have a
representative present. Most of the cases have involved allowing a police
officer who has been in charge of an investigation to remain in court despite
the fact that he will be a witness. United States v. Infanzon, 235 F.2d 318 (2d
Cir. 1956); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); Powell v.
United States, 208 F.2d 618 (6th Cir. 1953) Jones v. United States, 252 F. Supp.
781 (W.D. Okla. 1966). Designation of the representative by the attorney rather
than by the client may at first glance appear to be an inversion of the
attorney-client relationship, but it may be assumed that the attorney will
follow the wishes of the client, and the solution is simple and workable. See
California Evidence Code § 777. (3) The category contemplates such persons as an
agent who handled the transaction being litigated or an expert needed to advise
counsel in the management of the litigation. See 6 Wigmore § 1841, n. 4.

Report of Senate Committee on the Judiciary

Many district courts permit government counsel to have an
investigative agent at counsel table throughout the trial although the agent is
or may be a witness. The practice is permitted as an exception to the rule of
exclusion and compares with the situation defense counsel finds himself in—he
always has the client with him to consult during the trial. The investigative
agent’s presence may be extremely important to government counsel, especially
when the case is complex or involves some specialized subject matter. The agent,
too, having lived with the case for a long time, may be able to assist in
meeting trial surprises where the best-prepared counsel would otherwise have
difficulty. Yet, it would not seem the Government could often meet the burden
under rule 615 of showing that the agent’s presence is essential. Furthermore,
it could be dangerous to use the agent as a witness as early in the case as
possible, so that he might then help counsel as a nonwitness, since the agent’s
testimony could needed in rebuttal. Using another, nonwitness agent from the
same investigative agency would not generally meet government counsel’s needs.

This problem is solved if it is clear that investigative
agents are within the group specified under the second exception made in the
rule, for "an officer of employee of a party which is not a natural designated
as its representative by its attorney." It is our understanding that this was
the intention of the House committee. It is certainly this committee’s
construction of the rule.

Rule 701 has been amended to eliminate the risk that the
liability requirements set forth in Rule 702 will be evaded through the simple
expedient of proffering an expert in lay witness clothing. Under the amendment,
a witness’ testimony must be scrutinized under the rules regulating expert
opinion to the extent that the witness is providing testimony based on
scientific, technical, or other specialized knowledge within the scope of Rule
702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d
1190 (3d Cir. 1995). By channeling testimony that is actually expert testimony
to Rule 702, the amendment also ensures that a party will not evade the expert
witness disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim.
P. 16 by simply calling an expert witness in the guise of a layperson. See
Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the
Federal Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting that
"there is no good reason to allow what is essentially surprise expert
testimony," and that "the Court should be vigilant to preclude manipulative
conduct designed to thwart the expert disclosure and discovery process"). See
also United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997)
(law enforcement agents testifying that the defendant’s conduct was consistent
with that of a drug trafficker could not testify as lay witnesses; to permit
such testimony under Rule 701 "subverts the requirements of Federal Rule of
Criminal Procedure 16(a)(1)(E)").

The amendment does not distinguish between expert and lay
witnesses, but rather between expert and lay testimony. Certainly it
is possible for the same witness to provide both lay and expert testimony in a
single case. See, e.g., United States v. Figueroa-Lopez, 125 F.3d 1241,
1246 (9th Cir. 1997) (law enforcement agents could testify that the defendant
was acting suspiciously, without being qualified as experts; however, the rules
on experts were applicable where the agents testified on the basis of extensive
experience that the defendant was using code words to refer to drug quantities
and prices). The amendment makes clear that any part of a witness’ testimony
that is based upon scientific, technical, or other specialized knowledge within
the scope of Rule 702 is governed by the standards of Rule 702 and the
corresponding disclosure requirements of the Civil and Criminal Rules.

The amendment is not intended to affect the "prototypical
example[s] of the type of evidence contemplated by the adoption of Rule 701
relat[ing] to the appearance of persons or things, identity, the manner of
conduct, competency of a person, degrees of light or darkness, sound, size,
weight, distance, and an endless number of items that cannot be described
factually in words apart from the inferences." Asplundh Mfg. Div. v. Benton
Harbor Eng’g., 57 F.3d 1190, 1196 (3d Cir. 1995).

For example, most courts have permitted the owner or officer
of a business to testify to the value of projected profits of the business,
without the necessity of qualifying the witness as an accountant, appraiser, or
similar expert. See, e.g. Lightning Lube, Inc. v. Wilco Corp., 4 F.3d
1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff’s owner
to give lay opinion testimony as to damages, as it was based on his knowledge
and participation in the day-to-day affairs of the business). Such opinion
testimony is admitted not because of experience, training or specialized
knowledge within the realm of an expert, but because of the particularized
knowledge that the witness has by virtue of his or her position in the business.
The amendment does not purport to change this analysis. Similarly, the courts
have permitted lay witnesses to testify that a substance appeared to be a
narcotic, so long as a foundation of familiarity with the substance is
established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th
Cir. 1990) (two lay witnesses who were heavy amphetamine users were properly
permitted to testify that a substance was amphetamine; but it was error to
permit another witness to make such an identification where she had no
experience with amphetamines). Such testimony is not based on specialized
knowledge within the scope of Rule 702, but rather is based upon a lay person’s
personal knowledge. If, however, that witness were to describe how a narcotic
was manufactured, or to describe the intricate workings of a narcotic
distribution network, then the witness would have to qualify as an expert under
Rule 702. United State v. Figueroa-Lopez, supra.

The amendment incorporates the distinctions set forth in
State v. Brown, 836 S.W.2d 530, 549 (1992), a case involving former
Tennessee Rule of Evidence 701, a rule that precluded lay witness testimony
based on "special knowledge." In Brown, the court declared that the
distinction between lay and expert witness testimony is that lay testimony
"results from a process of reasoning familiar in everyday life," while expert
testimony "results from a process of reasoning which can be mastered only by
specialists in the field." The court in Brown noted that a lay witness
with experience could testify that a substances appeared to be blood, but that a
witness would have to qualify as an expert before he could testify that bruising
around the eyes is indicative of skull trauma. That is the kind of distinction
made by the amendment to this Rule.

Advisory Committee’s Note

The rule retains the traditional objective of putting the
trier of fact in possession of an accurate reproduction of the event.

Limitation (a) is the familiar requirement of first-hand
knowledge of observation.

Limitation (b) is phrased in terms of requiring testimony to
be helpful in resolving issues. Witnesses often find difficulty in expressing
themselves in language which is not that of an opinion or conclusion. While the
courts have made concession in certain recurring situations, necessity as a
standard for permitting opinions and conclusions have proved too elusive and too
unadaptable to particular situations for purposes of satisfactory judicial
administration. McCormick § 11. Moreover, the practical impossibility of
determining by rule what is a "fact," demonstrated by a century of litigation of
the question of what is a fact for purposes of pleading under the field Code,
extends into evidence also. 7 Wigmore § 1919. The rule assumes that the natural
characteristics of the adversary system will generally lead to an unacceptable
result, since the detailed account carries more conviction than the broad
assertion, and a lawyer can be expected to display his witness to the best
advantage. If he fails to do so, cross-examination and argument will point up
the weakness. See Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 415-417 (1952).
If, despite these considerations, attempts are made to introduce meaningless
assertions which amount to little more than choosing up sides, exclusion for
lack of helpfulness is called for by the rule.

The language of the rule is substantially that of Uniform
Rule 56(1). Similar provisions are California Evidence Code § 800; Kansas Code
of Civil Procedure § 60-456(a); New Jersey Evidence rule 56(1).

Rule 702 has been amended in response to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many
cases applying Daubert, including Kumho Tire Co. v. Carmichael,
119 S.Ct. 1167 (1999). In Daubert the Court charged trial judges with the
responsibility of acting as gatekeepers to exclude unreliable expert testimony,
and the Court in Kumho clarified that this gatekeeper function applies to
all expert testimony, no just testimony based on science. See also Kumho,
119 S.Ct. 15 1178 (citing the Committee Note to the proposed amendment to Rule
702, which had been released for public comment before the date of the Kumho
decision). The amendment affirms the trial court’s role as gatekeeper and
provides some general standards that the trial court must use to assess the
reliability and helpfulness of proffered expert testimony. Consistently with
Kumho, the Rule as amended provides that all types of expert testimony
present questions of admissibility for the trial court in deciding whether the
evidence is reliable and helpful. Consequently, the admissibility of all expert
testimony is governed by the principles of Rule 104(a). Under that Rule, the
proponent has the burden of establishing that the pertinent admissibility
requirements are met by a preponderance of the evidence. See Bourjaily v.
United States, 483 U.S. 171 (1987).

Daubert set forth a non-exclusive checklist for trial
courts to use in assessing the reliability of scientific expert testimony. The
specific factors explicated by the Daubert court are (1) whether the
expert’s technique or theory can be or has been tested—that is, whether the
expert’s theory can be challenged in some objective sense, or whether it is
instead simply a subjective, conclusory approach that cannot reasonably be
assessed for reliability; (2) whether the technique or theory has been subject
to peer review an publication; (3) the known or potential rate of error of the
technique or theory when applied; (4) the existence and maintenance of standards
and controls; and (5) whether the technique or theory has been generally
accepted in the scientific community. The Court in Kumho held that these
factors might also be applicable in assessing the reliability of non-scientific
expert testimony, depending upon "the particular circumstances of the particular
case at issue." 119 S.Ct. at 1175.

No attempt has been made to "codify" these specific factors.
Daubert itself emphasized that the factors were neither exclusive nor
dispositive. Other cases have recognized that not all of the specific Daubert
factors can apply to every type of expert testimony. In addition to Kumho,
119 S.Ct. at 1175, see Tyus v. Urban Search Management, 102 F.3d 254 (7th
Cir. 1996) (noting that the factors mentioned by the Court in Daubert do
not neatly apply to expert testimony from a sociologist). See also
Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997)
(holding that lack of peer review or publication was dispositive where the
expert’s opinion was supported by "widely accepted scientific knowledge"). The
standards set forth in the amendment are broad enough to require consideration
of any or all of the specific Daubert factors were appropriate.

Courts both before and after Daubert have found other
factors relevant in determining whether expert testimony is sufficiently
reliable to be considered by the trier of fact. These factors include:

(1) Whether experts are "proposing to testify about
matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions
expressly for purposes of testifying." Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

(2) Whether the expert has unjustifiably extrapolated
from an accepted premise to an unfounded conclusion. See General Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a
trial court "may conclude that there is simply too great an analytical gap
between the date and the opinion proffered").

(3) Whether the expert has adequately accounted for
obvious alternative explanations. See Claar v. Burlington N.R.R., 29
F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to
consider other obvious causes for the plaintiff’s condition). Compare
Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility
of some uneliminated causes presents a question of weight, so long as the
most obvious causes have been considered and reasonably rule out by an
expert).

(4) Whether the expert "is being as careful as he would
be in his regular professional work outside his paid litigation consulting."
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.
1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999)
(Daubert requires the trial court to assure itself that the expert
"employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.").

(5) Whether the field of expertise claimed by the expert
is known to reach reliable results for the type of opinion the expert would
give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999) (Daubert’s
general acceptance factors does not "help show that an expert’s testimony is
reliable where the discipline itself lacks reliability, as, for example, do
theories grounded in any so-called generally accepted principles of
astrology or necromancy."); Moore v. Ashland Chemical, Inc., 151 F.3d
269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from
testifying to the toxicological cause of the plaintiff’s respiratory
problem, where the opinion was not sufficiently grounded in scientific
methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th
Cir. 1988) (rejecting testimony based on "clinical ecology" as unfounded and
unreliable).

All of these factors remain relevant to the determination of
the reliability of expert testimony under the Rule as amended. Other factors may
also be relevant. See Kumho, 119 S.Ct. 1167, 1176 ("[W]e conclude that
the trial judge must have considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable.").
Yet no single factor is necessarily dispositive of the reliability of a
particular expert’s testimony. See, e.g., Heller v. Shaw Industries, Inc.,
167 F.3d 146, 155 (3d Cir. 1999) ("not only must each stage of the expert’s
testimony be reliable, but each stage must be evaluated practically and flexibly
without bright-line exclusionary (or inclusionary) rules."); Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317, n. 5 (9th Cir. 1995)
(noting that some expert disciplines "have the courtroom as a principal theater
of operations" and as to these disciplines "the fact that the expert has
developed an expertise principally for purposes of litigation will obviously not
be a substantial consideration.").

A review of the case law after Daubert shows that the
rejection of expert testimony is the exception rather than the rule. Daubert
did not work a "seachange over federal evidence law," and "the trial court’s
role as gatekeeper is not intended to serve as a replacement for the adversary
system." United States v. 14.38 Acres of Land Situated in Leflore County,
Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). As the Court in Daubert
stated: "Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence." 509 U.S. at 595. Likewise,
this amendment is not intended to provide an excuse for an automatic challenge
to the testimony of every expert. See Kumho Tire Co. v. Carmichael, 119
S.Ct. 1167, 1176 (1999) (noting that the trial judge has the discretion "both to
avoid unnecessary ‘reliability’ proceedings in ordinary cases where the
reliability of an expert’s methods is properly taken for granted, and to require
appropriate proceedings in the less usual or more complex cases where cause for
questioning the expert’s reliability arises.").

When a trial court, applying this amendment, rules that an
expert’s testimony is reliable, this does not necessarily mean that
contradictory expert testimony is unreliable. The amendment is broad enough to
permit testimony that is the product of competing principles or methods in the
same field of expertise. See, e.g., Heller v. Shaw Industries, Inc., 167
F.3d 146, 160 (3d Cir. 1999) (expert testimony cannot be excluded simply because
the expert uses one test rather than another, when both tests are accepted in
the field and both reach reliable results). As the court stated in In re
Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d. Cir. 1994), proponents
"do not have to demonstrate to the judge by a preponderance of the evidence that
the assessments of their experts are correct, they only have to demonstrate by a
preponderance of evidence that their opinions are reliable.... The evidentiary
requirement of reliability is lower than the merits standard of correctness."
See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318
(9th Cir. 1995) (scientific experts might be permitted to testify if they could
show that the methods they used were also employed by a "recognized minority of
scientists in their field."); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85
(1st Cir. 1998) ("Daubert neither requires nor empowers trial courts to
determine which of several competing scientific theories has the best
provenance.").

The Court in Daubert declared that the "focus, of
course, must be solely on principles and methodology, not on the conclusions
they generate." 509 U.S. at 595. Yet as the Court later recognized, "conclusions
and methodology are not entirely distinct from one another." General Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997). Under the amendment, as under
Daubert, when an expert purports to apply principles and methods in
accordance with professional standards, and yet reaches a conclusion that other
experts in the field would not reach, the trial court may fairly suspect that
the principles and methods have not been faithfully applied. See Lust v.
Merrell Dow Pharmaceuticals, Inc. 89 F.3d 594, 598 (9th Cir. 1996). The
amendment specifically provides that the trial court must scrutinize not only
the principles and methods used by the expert, but also whether those principles
and methods have been properly applied to the facts of the case. As the court
noted in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir.
1994), "any step that renders the analysis unreliable...renders the
expert’s testimony inadmissible. This is true whether the step completely
changes a reliable methodology or merely misapplies the methodology."

If the expert purports to apply principles and methods to the
facts of the case, it is important that this application be conducted reliably.
Yet it might also be important in some cases for an expert to educate the
factfinder about general principles, without ever attempting to apply these
principles to the specific facts of the case. For example, experts might
instruct the factfinder on the principles of thermodynamics, or bloodclotting,
or on how financial markets respond to corporate reports, without ever knowing
about or trying to tie their testimony into the facts of the case. The amendment
does not alter the venerable practice of using expert testimony to educate the
factfinder on general principles. For this kind of generalized testimony, Rule
702 simply requires that: (1) the expert be qualified; (2) the testimony address
a subject matter on which the factfinder can be assisted by an expert; (3) the
testimony be reliable; and (4) the testimony "fit" the facts of the case.

As stated earlier, the amendment does not distinguish between
scientific and other forms of expert testimony. The trial court’s gatekeeping
function applies to testimony by any expert. See Kumho Tire Co. v. Carmichael,
119 S.Ct. 1167, 1171 (1999) ("We conclude that Daubert’s general
holding—setting forth the trial judge’s general ‘gatekeeping’ obligation—applies
not only to testimony based on ‘scientific’ knowledge, but also to testimony
based on ‘technical’ and ‘other specialized’ knowledge.") While the relevant
factors for determining reliability will vary from expertise to expertise, the
amendment rejects the premise that an expert’s testimony should be treated more
permissively simply because it is outside the realm of science. An opinion from
an expert who is not a scientist should receive the same degree of scrutiny for
reliability as an opinion from an expert who purports to be a scientist. See
Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997) ("[I]t seems
exactly backwards that experts who purport to rely on general engineering
principles and practical experience might escape screening by the district court
simply by stating that their conclusions were not reached by any particular
method or technique.") Some types of expert testimony will be more objectively
verifiable, and subject to the expectations of falsifiablity, peer review, and
publication, than others. Some types of expert testimony will not rely on
anything like a scientific method, and so will have to be evaluated by reference
to other standard principles attendant to the particular area of expertise. The
trial judge in all cases of proffered expert testimony must find that it is
properly grounded, well-reasoned, and not speculative before it can be admitted.
The expert’s testimony must be grounded in an accepted body of learning or
experience in the expert’s field, and the expert must explain how the conclusion
is so grounded. See, e.g., American College of Trial Lawyers,
Standards and Procedures for Determining the Admissibility of Expert Testimony
after Daubert, 157 F.R.D. 571, 579 (1994) ("[W]hether the testimony concerns
economic principles, accounting standards, property valuation or other
non-scientific subjects, it should be evaluated by reference to the ‘knowledge
and experience’ of that particular field.").

The amendment requires that the testimony must be the product
of reliable principles and methods that are reliably applied to the facts of the
case. While the terms "principles" and "methods" may convey a certain impression
when applied to scientific knowledge, they remain relevant when applied to
testimony based on technical or other specialized knowledge. For example, when a
law enforcement agent testifies regarding the use of code words in a drug
transaction, the principle used by the agent is that participants in such
transactions regularly use code words to conceal the nature of their activities.
The method used by the agent is the application of extensive experience to
analyze the meaning of the conversations. So long as the principles and methods
are reliable and applied reliably to the facts of the case, this type of
testimony should be admitted.

Nothing in this amendment is intended to suggest that
experience alone—or experience in conjunction with other knowledge, skill,
training or education—may not provide a sufficient foundation for expert
testimony. To the contrary, the text of Rule 702 expressly contemplates that an
expert may be qualified on the basis of experience. In certain fields,
experience is the predominant, if not sole, basis for a great deal of reliable
expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th
Cir. 1997) (no abuse of discretion is admitting the testimony of a handwriting
examiner who had years of practical experience and extensive training, and who
explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.
Supp. 1241, 1248 (M.D. La. 1996) (design engineer’s testimony can be admissible
when the expert’s opinions "are based on facts, a reasonable investigation, and
traditional technical/mechanical expertise, and he provides a reasonable link
between the information and procedures he uses and the conclusions he reaches").
See also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1178 (1999)
(stating that "no one denies that an expert might draw a conclusion from a set
observations based on extensive and specialized experience.").

If the witness is relying solely or primarily on experience,
then the witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts The trial court’s gatekeeping
function requires more than simply "taking the expert’s word for it." See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir.
1995) ("We’ve been presented with only the experts’ qualifications, their
conclusions and their assurances of reliability. Under Daubert, that’s
not enough."). The more subjective and controversial the expert’s inquiry, the
more likely the testimony should be excluded as unreliable. See O’Connor v.
Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994) (expert testimony
based on a completely subjective methodology held properly excluded). See
also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) ("[I]t will
at times be useful to ask even of a witness whose expertise is based purely on
experience, say, a perfume tester able to distinguish among 140 odors at a
sniff, whether his preparation is of a kind that others in the field would
recognize as acceptable.").

Subpart (1) of Rule 702 calls for a quantitative rather than
qualitative analysis. The amendment requires that expert testimony be based on
sufficient underlying "facts or data." The term "data" is intended to encompass
the reliable opinions of other experts. See the original Advisory Committee Note
to Rule 703. The language "facts or data" is broad enough to allow an expert to
rely on hypothetical facts that are supported by the evidence. Id.

When facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts. The emphasis in the
amendment on "sufficient facts or data" is not intended to authorize a trial
court to exclude an expert’s testimony on the ground that the court believes one
version of the facts and not the other.

There has been some confusion over the relationship between
Rules 702 and 703. The amendment makes clear that the sufficiency of the basis
of an expert’s testimony is to be decided under Rule 702. Rule 702 sets forth
the overarching requirement of reliability, and an analysis of the sufficiency
of the expert’s basis cannot be divorced from the ultimate reliability of the
expert’s opinion. In contrast, the "reasonable reliance" requirement of Rule 703
is a relatively narrow inquiry. When an expert relies on inadmissible
information, Rule 703 requires the trial court to determine whether that
information is of a type reasonably relied upon by other experts in the field.
If so, the expert can rely on the information in reaching an opinion. However,
the question whether the expert is relying on a sufficient basis of
information—whether admissible information or not—is governed by the
requirements of Rule 702.

The amendment continues the practice of the original Rule in
referring to a qualified witness as an "expert." This was done to provide
continuity and to minimize change. The use of the word "expert" in the Rule does
not, however, mean that a jury should actually be informed that a qualified
witness is testifying as an "expert." Indeed, there is much to be said for a
practice that prohibits the use of the term "expert" by both the parties and the
court at trial. Such a practice "ensures that trial courts do not inadvertently
put their stamp of authority" on witness’s opinion, and protects against the
jury’s being "overwhelmed by the so-called ‘experts’." Hon. Charles Richey,
Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert"
Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154
F.R.D. 537, 559 (1994) (setting forth limiting instructions and a standing order
employed to prohibit the use of the term "expert" in jury trials).

Advisory Committee’s Note

An intelligent evaluation of facts is often difficult or
impossible without the application of some scientific, technical, or other
specialized knowledge. The most common source of this knowledge is the expert
witness, although there are other techniques for supplying it.

Most of the literature assumes that experts testify only in
the form of opinions. The assumption is logically unfounded. The rule
accordingly recognizes that an expert on the stand may give a dissertation or
exposition of scientific or other principles relevant to the case, leaving the
trier of fact to apply them to the facts. Since much of the criticism of expert
testimony has centered upon the hypothetical question, it seems wise to
recognize that opinions are not indispensable and to encourage the use of expert
testimony in nonopinion form when counsel believes the trier can itself draw the
requisite inference. The use of opinions is not abolished by the rule, however.
It will continue to be permissible for the expert to take the further step of
suggesting the inference which should be drawn from applying the specialized
knowledge to the facts. See Rules 703 to 705.

Whether the situation is a proper one for the use of expert
testimony is to be determined on the basis of assisting the trier. "There is no
more certain test for determining when experts may be used than the common sense
inquiry whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular issue without
enlightenment from those having a specialized understanding of the subject
involved in the dispute." Ladd, Expert Testimony, 6 Vand L. Rev. 414, 418
(1952). When opinions are excluded, it is because they are unhelpful and
therefore superfluous and a waste of time. 7 Wigmore § 1918.

The rule is broadly phrased. The fields of knowledge which
may be drawn upon are not limited merely to the "scientific" and "technical" but
extend to all "specialized" knowledge. Similarly, the expert is viewed, not in a
narrow sense, but as a person qualified by "knowledge, skill, experience,
training or education." Thus within the scope of the rule are not only experts
in the strictest sense of the word, e.g., physicians, physicists, and
architects, but also the large group sometimes called "skilled" witnesses, such
as bankers or landowners testifying to land values.

Rule 703 has been amended to emphasize that when an expert
reasonably relies on inadmissible information to form an opinion or inference,
the underlying information is not admissible simply because the opinion or
inference is admitted. Courts have reached different results on how to treat
inadmissible information when it is reasonably relied upon by an expert in
forming an opinion or drawing an inference. Compare United States v. Rollins,
862 F.2d 1282 (7th Cir. 1988) (admitting, as part of the basis of an FBI agent’s
expert opinion on the meaning of code language, the hearsay statements of an
informant), with United States v. 0.59 Acres of Land, 109 F.3d 1493 (9th
Cir. 1997) (error to admit hearsay offered as the basis of an expert opinion,
without a limiting instruction). Commentators have also taken differing views.
See, e.g., Ronald Carlson, Policing the Bases of Modern Expert
Testimony, 39 Vand L. Rev. 577 (1986) (advocating limits on the jury’s
consideration of otherwise inadmissible evidence used as the basis for an expert
opinion); Paul Rice, Inadmissible Evidence as a Basis for Expert Testimony: A
Response to Professor Carlson, 40 Vand L. Rev. 583 (1987) (advocating
unrestricted use of information reasonably relied upon by an expert).

When information is reasonably relied upon by an expert and
yet is admissible only for the purpose of assisting the jury in evaluating an
expert’s opinion, a trial court applying this Rule must consider the
information’s probative value in assisting the jury to weigh the expert’s
opinion on the one hand, and the risk of prejudice resulting from the jury’s
potential misuse of the information for substantive purposes on the other. The
information may be disclosed to the jury, upon objection, only if the trial
court finds that the probative value of the information in assisting the jury to
evaluate the expert’s opinion substantially outweighs its prejudicial effect. If
the otherwise inadmissible information is admitted under this balancing test,
the trial judge must give a limiting instruction upon request, informing the
jury that the underlying information must not be used for substantive purposes.
See Rule 105. In determining the appropriate course, the trial court should
consider the probable effectiveness or lack of effectiveness of a limiting
instruction under the particular circumstances.

The amendment governs only the disclosure to the jury of
information that is reasonably relied on by an expert, when that information is
not admissible for substantive purposes. It is not intended to affect the
admissibility of an expert’s testimony. Nor does the amendment prevent an expert
from relying on information that is inadmissible for substantive purposes.

Nothing in this Rule restricts the presentation of underlying
expert facts or data when offered by an adverse party. See Rule 705. Of
course, an adversary’s attack on an expert’s basis will often open the door to a
proponent’s rebuttal with information that was reasonably relied upon by the
expert, even if that information would not have been discloseable initially
under the balancing test provided by this amendment. Moreover, in some
circumstances the proponent might wish to disclose information that is relied
upon by the expert in order to "remove the sting" from the opponent’s
anticipated attack, and thereby prevent the jury from drawing an unfair negative
inference. The trial court should take this consideration into account in
applying the balancing test provided by this amendment.

This amendment covers facts or data that cannot be admitted
for any purpose other than to assist the jury to evaluate the expert’s opinion.
The balancing test provided in this amendment is not applicable to facts or data
that are admissible for any other purpose but have not yet been offered for such
a purpose at the time the expert testifies.

The amendment provides a presumption against disclosure to
the jury of information used as the basis of an expert’s opinion and not
admissible for any substantive purpose, when that information is offered by the
proponent of the expert. In a multi-party case, where one party proffers an
expert whose testimony is also beneficial to other parties, each party should be
deemed a "proponent" within the meaning of the amendment.

Advisory Committee’s Note

Facts or data upon which expert opinions are based may, under
the rule, be derived from three possible sources. The first is the firsthand
observation of the witness, with opinions based thereon traditionally allowed. A
treating physician affords an example. Rheingold, The Basis of Medical
Testimony, 15 Vand. L. Rev. 473, 489 (1962). Whether he must first relate his
observations is treated in Rule 705. The second source, presentation at the
trial, also reflects existing practice. The technique may be the familiar
hypothetical question or having the expert attend the trial and hear the
testimony establishing the facts. Problems of determining what testimony the
expert relied upon, when the latter technique is employed and the testimony is
in conflict, may be resolved by resort to Rule 705. The third source
contemplated by the rule consists of presentation of data to the expert outside
of court and other than by his own perception. In this respect the rule is
designed to broaden the basis for expert opinions beyond that current in many
jurisdictions and to bring the judicial practice into line with the practice of
the experts themselves when not in court. Thus a physician in his own practice
bases his diagnosis on information from numerous sources and of considerable
variety, including statements by patients and relatives, reports and opinions
from nurses, technicians and other doctors, hospital records, and X rays. Most
of them are admissible in evidence, but only with the expenditure of substantial
time in producing and examining various authenticating witnesses. The physician
makes life-and-death decisions in reliance upon them. His validation, expertly
performed and subject to cross-examination, ought to suffice for judicial
purposes. Rheingold, supra, at 531; McCormick § 15. A similar provision is
California Evidence Code § 801(b).

The rule also offers a more satisfactory basis for ruling
upon the admissibility of public opinion poll evidence. Attention is directed to
the validity of the techniques employed rather than to relatively fruitless
inquiries whether hearsay is involved. See Judge Feinberg’s careful analysis in
Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F. Supp. 670 (S.D.N.Y. 1963). See
also Blum et al, The Art of Opinion Research: A Lawyer’s Appraisal of an
Emerging Service, 24 U. Chi. L. Rev. 1 (1956); Bonynge, Trademark Surveys and
Techniques and Their Use in Litigation, 48 A.B.A.J. 329 (1962); Zeisel, The
Uniqueness of Survey Evidence, 45 Cornell L. W. 322 (1960); Annot., 76 A.L.R.2d
919.

If it be feared that enlargement of permissible data may tend
to break down the rules of exclusion unduly, notice should be taken that the
rule requires that the facts or data "be of a type reasonably relied upon by
experts in the particular field." The language would not warrant admitting in
evidence the opinion of an "accidentologist" as to the point impact in an
automobile collision based on statements of bystanders, since the requirement is
not satisfied. See Comment, Cal. Law Rev. Comm’n, Recommendation Proposing an
Evidence Code 148-150 (1965).

The purpose of this amendment is to eliminate the confusing
spectacle of competing expert witnesses testifying to directly contradictory
conclusions as to the ultimate legal issue to be found by the trier of act.
Under this proposal, expert psychiatric testimony would be limited to presenting
and explaining their diagnoses, such as whether the defendant had a severe
mental disease or defect and what the characteristics of such a disease or
defect, if any, may have been. The basis for this limitation on expert testimony
in insanity cases is ably stated by the American Psychiatric Association:

[I]t is clear that psychiatrists are experts in medicine,
not the law. As such, it is clear that the psychiatrist’s first obligation
and expertise in the courtroom is to "do psychiatry," i.e., to present
medical information and opinion about the defendant’s mental state and
motivation and to explain in detail the reason for his medical-psychiatric
conclusions. When, however, "ultimate issue" questions are formulated by the
law and put to the expert witness who must then say "yea" and "nay," then
the expert witness is required to make a leap of logic. He no longer
addresses himself to medical concepts but instead must infer or intuit what
is in fact unspeakable, namely, the probable relationship between medical
concepts and legal or moral constructs such as free will. These
impermissible leaps in logic made by expert witnesses confuse the jury.
[Footnote omitted.] Juries thus find themselves listening to conclusory and
seemingly contradictory psychiatric testimony that defendants are either
"sane" or "insane" or that they do or do not meet the relevant legal test
for insanity. This state of affairs does considerable injustice to
psychiatry and, we believe, possibly to criminal defendants. In fact, in
many criminal insanity trials both prosecution and defense psychiatrists do
agree about the nature and even the extent of mental disorder exhibited by
the defendant at the time of the act.

Psychiatrists, of course, must be permitted to testify
fully about the defendant’s diagnosis, mental state and motivation (in
clinical and common-sense terms) at the time of the alleged act so as to
permit the jury or judge to reach the ultimate conclusion about which they
and only they are expert. Determining whether a criminal defendant was
legally insane is a matter for legal fact-finders, not for experts.

Moreover, the rationale for precluding ultimate opinion
psychiatric testimony extends beyond the insanity defense to any ultimate mental
state of the defendant that is relevant to the legal conclusion sought to be
proven. The Committee has fashioned its Rule 704 provision to reach all such
"ultimate" issues, e.g., premeditation in a homicide case or lack of
predisposition in entrapment.

Advisory Committee’s Note

The basic approach to opinions, lay and expert, in these
rules is to admit them when helpful to the trier of act. In order to render this
approach fully effective and to allay any doubt on the subject, the so-called
"ultimate issue" rule is specifically abolished by the instant rule.

The older cases often contained strictures against allowing
witnesses to express opinions upon ultimate issues, as a particular aspect of
the rule against opinions. The rule was unduly restrictive, difficult of
application, and generally served only to deprive the trier of fact of useful
information. 7 Wigmore §§ 1920, 1921; McCormick § 12. The basis usually assigned
for the rule, to prevent the witness from "usurping the province of the jury,"
is aptly characterized as "empty rhetoric." 7 Wigmore § 1920, p. 17. Efforts to
meet the felt needs of particular situations led to odd verbal circumlocutions
which were said not to violate the rule. Thus a witness could express his
estimate of the criminal responsibility of an accused in terms of sanity or
insanity, but not in terms of ability to tell right from wrong or other more
modern standard. And in cases of medical causation, witnesses were sometimes
required to couch their opinions in cautious phrases of "might or could," rather
than "did," though the result was to deprive many opinions of the positiveness
to which they were entitled, accompanied by the hazard of a ruling of
insufficiency to support a verdict. In other instances the rule was simply
disregarded, and, as concessions to need, opinions were allowed upon such
matters as intoxication, speed, handwriting, and value, although more precise
coincidence with an ultimate issue would scarcely be possible.

The abolition of the ultimate issue rule does not lower the
bars so as to admit all opinions. Under Rule 701 and 702, opinions must be
helpful to the trier of fact, and Rule 403 provides for exclusion of evidence
which wastes time. These provisions afford ample assurances against the
admission of opinions which would merely tell the jury what result to reach,
somewhat in the manner of the oath-helpers of an earlier day. They also stand
ready to exclude opinions phrased in terms of inadequately explored legal
criteria. Thus the question, "Did T have capacity to make a will?" would be
excluded, while the question, "Did T have sufficient mental capacity to know the
nature and extent of the property and the natural objects of his bounty and to
formulate a rational scheme of distribution?" would be allowed. McCormick § 12.

This rule, which relates to the manner of presenting
testimony at trial, is revised to avoid an arguable conflict with revised Rules
26(a)(2)(B) and 26(e)(1) of the Federal Rules of Civil Procedure or with revised
Rule 16 of the Federal Rules of Criminal Procedure, which require disclosure in
advance of trial of the basis and reasons for an expert’s opinions.

If a serious question is raised under Rule 702 or 703 as to
the admissibility of expert testimony, disclosure of the underlying facts or
data on which opinions are based may, of course, be needed by the court before
deciding whether, and to what extent, the person should be allowed to testify.
This rule does not preclude such an inquiry.

Advisory Committee’s Note

The hypothetical question has been the target of a great deal
of criticism as encouraging partisan bias, affording an opportunity for summing
up in the middle of the case, and as complex and time consuming. Ladd, Expert
Testimony, 5 Vand. L. Rev. 414, 426-427 (1952). While the rule allows counsel to
make disclosure of the underlying facts or data as a preliminary to the giving
of an expert opinion, if he chooses, the instances in which he is required to do
so are reduced. This is true whether the expert basis his opinion on data
furnished him at secondhand or observed by him at firsthand.

The elimination of the requirement of preliminary disclosure
at the trial of underlying facts or data has a long background of support. In
1937 the Commissioners on Uniform State Laws incorporated a provision to this
effect in their Model Expert Testimony Act, which furnished the basis for
Uniform Rules 57 and 58. Rule 4515. N.Y. CPLR (McKinney 1963), provides:

"Unless the court orders otherwise, questions calling for
the opinion of an expert witness need not be hypothetical in form, and the
witness may state his opinion and reasons without first specifying the data
upon which it is based. Upon cross examination, he may be required to
specify the data...."

If the objection is made that leaving it to the
cross-examiner to bring out the supporting data is essentially unfair, the
answer is that he is under no compulsion to bring out any facts or data except
those unfavorable to the opinion. The answer assumes that the cross-examiner has
the advance knowledge which is essential for effective cross-examination. This
advance knowledge has been afforded, though imperfectly, by the traditional
foundation requirement. Rule 26(b)(4) of the Rule of Civil Procedure, as
revised, provides for substantial discovery in this area, obviating in large
measure the obstacles which have been raised in some instances to discovery of
findings, underlying data, and even the identity of the experts. Friedenthal,
Discovery and Use of an Adverse Party’s Expert Information, 14 Stan. L. Rev. 455
(1962).

These safeguards are reinforced by the discretionary power of
the judge to require preliminary disclosure in any event.

The rule enacted by the Congress is the rule prescribed by
the Supreme Court, amended by substituting "court" in place of "judge," with
conforming pronominal changes, and, in subdivision (b), by substituting the
phrase "and civil actions and proceedings" in place of "and cases" before
"involving" in the second sentence.

Advisory Committee’s Note

The practice of shopping for experts, the venality of some
experts, and the reluctance of many reputable experts to involve themselves in
litigation, have been matters of deep concern. Though the contention is made
that court appointed experts acquire an aura of infallibility to which they are
not entitled, Levy, Impartial Medical Testimony—Revisited, 34 Temple L.Q. 416
(1961), the trend is increasingly to provide for their use. While experience
indicates that actual appointment is a relatively infrequent occurrence, the
assumption may be made that the availability of the procedure in itself
decreases the need for resorting to it. The ever-present possibility that the
judge may appoint an expert in a given case must inevitably exert a
sobering effect on the expert witness of a party and upon the person utilizing
his services.

The New York plan is well known and is described in Report by
Special Committee of the Association of the Bar of the City of New York:
Impartial Medical Testimony (1956). On recommendation of the Section of Judicial
Administration, local adoption of an impartial medical plan was endorsed by the
American Bar Association. 82 A.B.A. Rep. 184-185 (1957). Descriptions and
analyses of plans in effect in various parts of the country are found in Van
Dusen, A United States District Judge’s View of the Impartial Medical Expert
System, 32 F.R.D. 498 (1963); Wick and Kightlinger, Impartial Medical Testimony
Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins. Counsel J. 115
(1967; and numerous articles collected in Klein, Judicial Administration and the
Legal Profession 393 (1963). Statutes and rule include California Evidence Code
§§ 730-733; Illinois Supreme Court Rule 215(d), Ill. Rev. Stat. 1969, c. 110A,
§ 215(d); Burns Indiana Stats. 1956, § 9-1702; Wisconsin Stats. Annot. 1958,
§ 957.27.

In the federal practice, a comprehensive scheme for court
appointed experts was initiated with the adoption of Rule 28 of the Federal
Rules of Criminal Procedure in 1946. The Judicial Conference of the United
States in 1953 considered court appointed experts in civil cases, but only with
respect to whether they should be compensated from public funds, a proposal
which was rejected. Report of the Judicial Conference of the United 23 (1953).
The present rule expands the practice to include civil cases.

Subdivision (a) is based on Rule 28 of the Federal Rules
of Criminal Procedure, with a few changes, mainly in the interest of clarity.
Language has been added to provide specifically for the appointment either on
motion or a party or on the judge’s own motion. A provision subjecting the court
appointed expert to deposition procedures has been incorporated. The rule has
been revised to make definite the right of any party, including the party
calling him, to cross-examine.

Subdivision (b) combines the present provision for
compensation in criminal cases with what seems to be a fair and feasible
handling of civil cases, originally found in the Model Act and carried from
there into Uniform Rule 60. See also California Evidence Code §§ 730-731. The
special provision for Fifth Amendment compensation cases is designed to guard
against reducing constitutionally guaranteed just compensation by requiring the
recipient to pay costs. See Rule 71A(l) of the Rules of Civil Procedure.

Subdivision (c) seems to be essential if the use of court
appointed experts is to be fully effective. Uniform Rule 61 so provides.

Subdivision (d) is in essence the last sentence of Rule
28(a) of the Federal Rules of Criminal Procedure.

The factors to be considered in evaluating the testimony of a
witness are perception, memory, and narration. Morgan, Hearsay Dangers and the
Application of the Hearsay Concept, 62 Harv. L. Rev. 177 (1948), Selected
Writings on Evidence and Trial 764, 765 (Fryer ed. 1957); Shientag,
Cross-Examination—A Judge’s Viewpoint, 3 Record 12 (1948); Strahorn, A
Reconsideration of the Hearsay Rule and Admissions, 85 U. Pa. L. Rev. 484, 485
(1937), Selected Writings, supra, 756, 757; Weinstein, Probative Force of
Hearsay, 46 Iowa L. Rev. 331 (1961). Sometimes a fourth is added, sincerity, but
in fact it seems merely to be an aspect of the three already mentioned.

In order to encourage the witness to do his best with respect
to each of these factors, and to expose any inaccuracies which may enter in, the
Anglo-American tradition has evolved three conditions under which witnesses will
ideally be required to testify: (1) under oath, (2) in the personal presence of
the trier of fact, (3) subject to cross-examination.

(1) Standard procedure calls for the swearing of witnesses.
While the practice is perhaps less effective than in an earlier time, no
disposition to relax the requirement is apparent, other than to allow
affirmation by persons with scruples against taking oaths.

(2) The demeanor of the witness traditionally as been
believed to furnish trier an opponent with valuable clues. Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 468-469, 95 L.Ed. 456
(1951); Sahm, Demeanor Evidence: Elusive and Intangible Imponderables, 47
A.B.A..J. 580 (9161), quoting numerous authorities. The witness himself will
probably be impressed with the solemnity of the occasion and the possibility of
public disgrace. Willingness to falsify may reasonably become more difficult in
the presence of the person against whom directed. Rules 26 and 43(a) of the
Federal Rules of Criminal and Civil Procedure, respectively, include the general
requirement that testimony be taken orally in open court. The Sixth Amendment
right of confrontation is a manifestation of these beliefs and attitudes.

(3) Emphasis on the basis of the hearsay rule today tends to
center upon the condition of cross-examination. All may not agree with Wigmore
that cross-examination is "beyond doubt the greatest legal engine ever invented
for the discovery of truth," but all will agree with his statement that it has
become a "vital feature" of the Anglo-American system. 5 Wigmore § 1367,p. 29.
The belief, or perhaps hope, that cross-examination is effective in exposing
imperfections of perception, memory, and narration is fundamental. Morgan,
Foreword to Model Code of Evidence 37 (1942).

The logic of the preceding discussion might suggest that no
testimony be received unless in full compliance with the three ideal conditions.
No one advocates this position. Common sense tells hat much evidence which is
not given under the three conditions may be inherently superior to much that is.
Moreover, when the choice is between evidence which is less than best and no
evidence at all, only clear folly would dictate an across-the-board policy of
doing without. The problem thus resolves itself into effecting a sensible
accommodation between these considerations and the desirability of giving
testimony under the ideal conditions.

The solution evolved by the common law has been a general
rule excluding hearsay but subject to numerous exceptions under circumstances
supposed to furnish guarantees of trustworthiness. Criticisms of this scheme are
that it is bulky and complex, fails to screen good from bad hearsay
realistically, and inhibits the growth of the law of evidence.

Since no one advocates excluding all hearsay, three possible
solutions may be considered: (a) abolish the rule against hearsay and admit all
hearsay; (2) admit hearsay possessing sufficient probative force, but with
procedural safeguards; (3) revise the present system of class exceptions.

(1) Abolition of the hearsay rule would be the simplest
solution. The effect would not be automatically to abolish the giving of
testimony under ideal conditions. If the declarant were available, compliance
with the ideal conditions would be optional with either party. Thus the
proponent could call the declarant as a witness as a form of presentation more
impressive than his hearsay statement. Or the opponent could call the declarant
to be cross-examined upon his statement. This is the tenor of Uniform Rule
63(1), admitting the hearsay declaration of a person "who is present at the
hearing and available for cross-examination." Compare the treatment of
declarations of available declarants in Rule 801(d)(1) of the instant rules. If
the declarant were unavailable, a rule of free admissibility would make no
distinctions in terms of degrees of noncompliance with the ideal conditions and
would exact no quid pro quo in the form of assurances of trustworthiness. Rule
503 of the Model Code did exactly that, providing for the admissibility of any
hearsay declaration by an unavailable declarant, finding support in the
Massachusetts act of 1898, enacted at the instance of Thayer, Mass. Gen. L.
1932, c. 233, § 65, and in the English of the 1938, St. 1938, c. 28, Evidence.
Both are limited to civil cases. The draftsmen of the Uniform Rules chose a less
advanced and more conventional position. Comment, Uniform Rule 63. The present
Advisory Committee has en unconvinced of the wisdom of abandoning the
traditional requirement of some particular assurance of credibility as a
condition precedent to admitting the hearsay declaration of an unavailable
witness.

In criminal cases, the Sixth Amendment requirement of
confrontation would no doubt move into a large part of the area presently
occupied by the hearsay rule in the event of the abolition of the latter. The
resultant split between civil and criminal evidence is regarded as an
undesirable development.

(2) Abandonment of the system of class exceptions in favor of
individual treatment in the setting of the particular case, accompanied by
procedural safeguards, has been impressively advocated. Weinstein, The Probative
Force of Hearsay, 46 Iowa L. Rev. 331 (1961). Admissibility would be determined
by weighing the probative force of the evidence against the possibility of
prejudice, waste of time, and the availability of more satisfactory evidence.
The bases of the traditional hearsay exceptions would be helpful in assessing
probative force. Ladd, The Relationship of the Principles of Exclusionary Rules
of Evidence to the Problem of Proof, 18 Minn. L. Rev. 506 (1934). Procedural
safeguards would consist of notice of intention to use hearsay, free comment by
the judge on the weight of the evidence, and a greater measure of authority in
both trial and appellate judges to deal with evidence on the basis of weight.
The Advisory Committee has rejected this approach to hearsay as involving too
great a measure of judicial discretion, minimizing the predictability of
rulings, enhancing the difficulties of preparation for trial, adding a further
element to the already over-complicated congeries of pretrial procedures, and
requiring substantially different rules for civil and criminal cases. The only
way in which the probative force of hearsay differs from the probative force of
other testimony is in the absence of oath, demeanor, and cross examination as
aids in determining credibility. For a judge to exclude evidence because he does
not believe it has been described as "altogether atypical, extraordinary...."
Chadbourn, Bentham and the Hearsay Rule—A Benthamic View of Rule 63(4)(c) of the
Uniform Rules of Evidence, 75 Harv. L. Rev. 932, 947 (1962).

(3) The approach to hearsay in these rules is that of the
common law, i.e., a general rule excluding hearsay, with exceptions under which
evidence is not required to be excluded even though hearsay. The traditional
hearsay exceptions are drawn upon for the exceptions, collected under two rules,
one dealing with situations where availability of the declarant is regarded as
immaterial and the other with those where unavailability is made a condition to
the admission of the hearsay statement. Each of the two rules concludes with a
provision for hearsay statements not within one of the specified exceptions "but
having comparable [equivalent] circumstantial guarantees of trustworthiness."
Rules 803(24) and 804(b)(6)[5]. This plan is submitted as calculated to
encourage growth and development in this area of the law, while conserving the
values and experience of the past as a guide to the future.

Confrontation and Due Process

Until very recently, decisions invoking the confrontation
clause of the Sixth Amendment were surprisingly few, a fact probably explainable
by the former inapplicability of the clause to the states and by the hearsay
rule’s occupancy of much the same ground. The pattern which emerges from the
earlier cases invoking the clause is substantially that of the hearsay rule,
applied to criminal cases: an accused is entitled to have the witnesses against
him testify under oath, in the presence of himself and trier, subject to
cross-examination; yet considerations of public policy and necessity require the
recognition of such exceptions as dying declarations and ormer testimony of
unavailable witnesses. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39
L. Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L. Ed.
1150 (1900); Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68 L. Ed. 462
(1924). Beginning with Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.
Ed. 674 (1934), the Court began to speak of confrontation as an aspect of
procedural due process, thus extending its applicability to state cases and to
federal cases other than criminal. The language of Snyder was that of an
elastic concept of hearsay. The deportation case of Bridges v. Wixon, 326 U.S.
135, 65 S.Ct. 1443, 89 L. Ed. 2103 (1945), may be read broadly as imposing a
strictly construed right of confrontation in all kinds of cases or narrowly as
the product of a failure of the Immigration and Naturalization to follow its own
rules. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L. Ed. 682 (1948), ruled
that cross-examination was essential to due process in a state contempt
proceeding, but in United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L. Ed.
1417 (1953), the court held that it was not an essential aspect of a "hearing"
for a conscientious objector under the Selective Service Act. Stein v. New York,
346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L. Ed. 1522 (1953), disclaimed any
purpose to read the hearsay rule into the Fourteenth Amendment, but in Greene v.
McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L. Ed. 2d 1377 (1959), revocation of a
security clearance without confrontation and cross-examination was held
unauthorized, and a similar result was reached in Willner v. Committee on
Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L. Ed. 2d 224 (1963). Ascertaining the
constitutional dimensions of the confrontation-hearsay aggregate against the
background of these cases is a matter of some difficulty, yet the general
pattern is at least not inconsistent with that of the hearsay rule.

In 1965 the confrontation clause was held applicable to the
states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L. Ed. 2d 923 (1965).
Prosecution use of former testimony given at a preliminary hearing where
petitioner was not represented by counsel was a violation of the clause. The
same result would have followed under conventional hearsay doctrine read in the
light of a constitutional right to counsel, and nothing in the opinion suggests
any difference in essential outline between the hearsay rule and the right of
confrontation. In the companion case of Douglas v. Alabama, 380 U.S. 415, 85
S.Ct. 1074, 13 L. Ed. 2d 934 (1965), however, the result reached by applying the
confrontation clause is one reached less readily via the hearsay rule. A
confession implicating petitioner was put before the jury by reading it to the
witness in portions and asking if he made that statement. The witness refused to
answer on grounds of self-incrimination. The result, said the Court, was to deny
cross-examination, and hence confrontation. True, it could broadly be said that
the confession was a hearsay statement which for all practical purposes was put
in evidence. Yet a more easily accepted explanation of the opinion is that its
real thrust was in the direction of curbing undesirable prosecutorial behavior,
rather than merely applying rules of exclusion, and that the confrontation
clause was the means selected to achieve this end. Comparable facts and a like
result appeared in Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L. Ed. 2d
314 (1966).

The pattern suggested in Douglas was developed further
and more distinctly in a pair of cases at the end of the 1966 term. United
States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed. 2d 1149 (1967), and
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed. 2d 1179 (1967),
hinged upon practices followed in identifying accused persons before trial. This
pretrial identification was said to be so decisive an aspect of the case that
the accused was entitled to have counsel present; a pretrial identification made
in the absence of counsel was not itself receivable in evidence and, in
addition, might fatally infect a courtroom identification. The presence of
counsel at the earlier identification was described as a necessary prerequisite
for a "meaningful confrontation at trial." United States v. Wade, supra, 388
U.S. at p. 236, 87 S.Ct. at p. 1937. Wade involved no evidence of the
fact of a prior identification and hence was not susceptible of being decided on
hearsay grounds. In Gilbert, witnesses did testify to an earlier
identification, readily classifiable as hearsay under a fairly strict view of
what constitutes hearsay. The Court, however, carefully avoided basing the
decision on the hearsay ground, choosing confrontation instead. 388 U.S. 263,
272, n. 3, 87 S.Ct. 1951. See also Parker v. Gladden, 385 U.S. 363, 87 S.Ct.
468, 17 L. Ed. 2d 410 (1966), holding that the right of confrontation was
violated when the bailiff made prejudicial statements to jurors, and Note, 75
Yale L.J. 1434 (1966).

Under the earlier cases, the confrontation clause may have
been little more than a constitutional embodiment of the hearsay rule, even
including traditional exceptions but with some room for expanding them along
similar lines. But under the recent cases the impact of the clause clearly
extends beyond the confines of the hearsay rule. These considerations have led
the Advisory Committee to conclude that a hearsay rule can function usefully as
an adjunct to the confrontation right in constitutional areas and independently
in nonconstitutional areas. In recognition of the separateness of the
confrontation clause and the hearsay rule and other exclusionary principles, the
exceptions set forth in Rules 803 and 804 are stated in terms of exemption from
the general exclusionary mandate of the hearsay rule, rather than in positive
terms of admissibility. See Uniform Rule 63(1) to (31) and California Evidence
Code §§ 1200-1340.

Rule 801(d)(2) has been amended in order to respond to three issues raised by
Bourjaily v. United States, 483 U.S. 171 (1987). First, the amendment codifies
the holding in Bourjaily by stating expressly that a court shall consider the
contents of a coconspirator’s statement in determining "the existence of the
conspiracy and the participation therein of the declarant and the party against
whom the statement is offered." According to Bourjaily, Rule 104(a)
requires these preliminary questions to be established by a preponderance of the
evidence.

Second, the amendment resolves an issue on which the Court had reserved
decision. It provides that the contents of the declarant’s statement do not
alone suffice to establish a conspiracy in which the declarant and the defendant
participated. The court must consider in addition the circumstances surrounding
the statement, such as the identity of the speaker, the context in which the
statement was made, or evidence corroborating the contents of the statement in
making its determination as to each preliminary question. This amendment is in
accordance with existing practice. Every court of appeals that has resolved this
issue requires some evidence in addition to the contents of the statement.
See, e.g., United States v. Beckham, 968 F.2d 47, 51 (D.C. Cir. 1992);
United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir. 1993), cert.
denied, [512 U.S. 1223] (1994); United States v. Daly, 842 F.2d 1380,
1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Clark,
18 F.3d 1337, 1341-42 (6th Cir.), cert. denied, [513 U.S. 852] (1994); United
States v. Zambrana, 841 F.2d 1320, 1344-45 (7th Cir. 1988); United States
v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988); United States v. Gordon,
844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Hernandez, 829 F.2d
988, 993 (10th Cir. 1987), cert. denied, 485 U.S. 1013 (1988); United States
v. Byrom, 910 F.2d 725, 735 (11th Cir. 1990).

Third, the amendment extends the reasoning of Bourjaily to statements
offered under subparagraphs (C) and (D) of Rule 801(d)(2). In Bourjaily, the
Court rejected treating foundational facts pursuant to the law of agency in
favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee
believes it appropriate to treat analogously preliminary questions relating to
the declarant’s authority under subdivision (C), and the agency or employment
relationship and scope thereof under subdivision (D).

Note by Federal Judicial Center

The rule enacted by the Congress is the rule prescribed by the Supreme Court
with amendment to subdivision (d)(1). The amendment inserted in item (A), after
"testimony," the phrase "and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a deposition."

Advisory Committee’s Note

Subdivision (a). The definition of "statement" assumes importance because
the term is used in the definition of hearsay in subdivision (c). The effect of
the definition of "statement" is to exclude from the operation of the hearsay
rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.
The key to the definition is that nothing is an assertion unless intended to be
one.

It can scarcely be doubted that an assertion made in words is intended by the
declarant to be an assertion. Hence verbal assertions readily fall into the
category of "statement." Whether nonverbal conduct should be regarded as a
statement for purposes of defining hearsay requires further consideration. Some
nonverbal conduct, such as the act of pointing to identify a suspect in a
lineup, is clearly the equivalent of words, assertive in nature, and to be
regarded as a statement. Other nonverbal conduct, however, may be offered as
evidence that the person acted as he did because of his belief in the existence
of the condition sought to be proved, from which belief the existence of the
condition may be inferred. This sequence is, arguably, in effect an assertion of
the existence of the condition and hence properly includable within the hearsay
concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept,
62 Harv. L. Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied
Assertions as Hearsay: Some Criticisms of the Uniform Rule of Evidence, 14 Stan.
L. Rev. 682 (1962). Admittedly evidence of this character is untested with
respect to the perception, memory, and narration (or their equivalents) of the
actor, but the Advisory Committee is of the view that these dangers are minimal
in the absence of an intent to assert and do not justify the loss of the
evidence on hearsay grounds. No class of evidence is free of the possibility of
fabrication, but the likelihood is less with nonverbal than with assertive
verbal conduct. The situations giving rise to the nonverbal conduct are such as
virtually to eliminate questions of sincerity. Motivation, the nature of the
conduct, and the presence or absence of reliance will bear heavily upon the
weight to be the evidence. Falknor, the "Hear-Say" Rule as a "See-Do" rule:
Evidence of Conduct, 33 Rocky Mt. L. Rev. 133 (1961). Similar considerations
govern nonassertive verbal conduct and verbal conduct which is assertive but
offered as a basis for inferring something other than the matter asserted, also
excluded from the definition of hearsay by the language of subdivision (c).

When evidence of conduct is offered on the theory that it is not a statement,
and hence not hearsay, a preliminary determination will be required to determine
whether an assertion is intended. The rule is so worded as to place the burden
upon the party claiming that the intention existed; ambiguous and doubtful cases
will be resolved against him and in favor of admissibility. The determination
involves no greater difficulty than many other preliminary questions of fact.
Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand L. Rev.
741, 765-767 (1961).

Subdivision (c). The definition follows along familiar lines in including
only statements offered to prove the truth of the matter asserted. McCormick
§ 225. 5 Wigmore § 1361, 6 id. § 1766. If the significance of an offered
statement lies solely in the fact that it was made, no issue is raised as to the
truth of anything asserted, and the statement is not hearsay. Emich Motors Corp.
v. General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev’d on other grounds 340
U.S. 558, 71 S.Ct. 408, 95 L. Ed. 534, letters of complaint from customers
offered as a reason for cancellation of dealer’s franchise, to rebut contention
that franchise was revoked for refusal to finance sales through affiliated
finance company. The effect is to exclude form hearsay the entire category of
"verbal acts" and "verbal parts of an act," in which the statement itself
affects the legal rights of the parties or is a circumstance bearing on conduct
affecting their rights.

The definition of hearsay must, of course, be read with reference to the
definition of a statement set forth in subdivision (a).

Testimony given by a witness in the course of court proceedings is excluded
since there is compliance with all the ideal conditions for testifying.

Subdivision (d). Several types of statements which would otherwise
literally fall within the definition are expressly excluded from it:

(1) Prior statement by witness. Considerable controversy has attend
the question whether a prior out-of-court statement by a person now available
for cross-examination concerning it, under oath and in the presence of the trier
of fact, should be classed as hearsay. If the witness admits on the stand that
he made the statement and that it was true, he adopts the statement and there is
no hearsay problem. The hearsay problem arises when the witness on the stand
denies having made the statement or admits having made it but denies its truth.
The argument in favor of treating these latter statements as hearsay is based
upon the ground that the conditions of oath, cross-examination, and demeanor
observation did not prevail at the time the statement was made and cannot
adequately be supplied by the later examination. The logic of the situation is
troublesome. So far as concerns the oath, its mere presence has never been
regarded as sufficient to remove a statement from the hearsay category, and it
receives much less emphasis than cross-examination as a truth-compelling device.
While strong expressions are found to the effect that no conviction can be had
or important right taken away on the basis of statements not made under fear of
prosecution for perjury, Bridges v. Wixon, 326 U.S. 136, 65 S.Ct. 1443, 89 L.
Ed. 2103 (1945), the fact is that, of the many common law exceptions to the
hearsay rule, only that for reported testimony has required the statement to
have been made under oath. Nor is it satisfactorily explained why
cross-examination cannot be conducted subsequently with success. The decisions
contending most vigorously for its inadequacy in fact demonstrate quite thorough
exploration of the weaknesses and doubts attending the earlier statement. State
v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939); Ruhala v. Roby, 379 Mich. 102,
150 N.W. 2d 146 (1967); People v. Johnson, 68 Cal. 2d 646, 68 Cal. Rptr. 599,
441 P.2d 111 (1968). In respect to demeanor, as Judge Learned Hand observed in
Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925), when the jury decides that
the truth is not what the witness says now, but what he said before, they are
still deciding from what they see and hear in court. The bulk of the case law
nevertheless has been against allowing prior statements of witnesses to be used
generally as substantive evidence. Most of the writers and Uniform Rule 63(1)
have taken the opposite position.

The position taken by the Advisory Committee in formulating this part of the
rule is founded upon an unwillingness to countenance the general use of prior
prepared statements as substantive evidence, but with a recognition that
particular circumstances call for a contrary result. The judgment is one more of
experience than of logic. The rule requires in each instance, as a general
safeguard, that the declarant actually testify as a witness, and it then
enumerates three situations in which the statement is excepted from the category
of hearsay. Compare Uniform Rule 63(1) which allows any out-of-court statement
of a declarant who is present at the trial and available for cross-examination.

(A) Prior inconsistent statements traditionally have been admissible to
impeach but not as substantive evidence. Under the rule they are substantive
evidence. As has been said by the California Law Revision Commission with
respect to a similar provision:

"Section 1235 admits inconsistent statements of witnesses because the
dangers against which the hearsay rule is designed to protect are largely
nonexistent. The declarant is in court and may be examined and
cross-examined in regard to his statements and their subject matter. In many
cases, the inconsistent statement is more likely to be true than the
testimony of the witness at the trial because it was made nearer in time to
the controversy that gave rise to the litigation. The trier of fact has the
declarant before it and can observe his demeanor and the nature of his
testimony as he denies or tries to explain away the inconsistency. Hence, it
is in as good a position to determine the truth or falsity of the prior
statement as it is to determine the truth or falsity of the inconsistent
testimony given in court. Moreover, Section 1235 will provide a party with
desirable protection against the "turncoat" witness who changes his story of
the stand and deprives the party calling him of evidence essential to his
case." Comment, California Evidence Code § 1235. See also McCormick § 39.
The Advisory Committee finds these views more convincing than those
expressed in People v. Johnson, 68 Cal. 2d 646, 68 Cal. Rptr. 599, 441 P.2d
111 (1968). The constitutionality of the Advisory Committee’s view was
upheld in California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d
489 (1970). Moreover, the requirement that the statement be inconsistent
with the testimony given assures a thorough exploration of both versions
while the witness is on the stand and bars any general and indiscriminate
use of previously prepared statements.

Report of House Committee on the Judiciary

Present federal law, except in the Second Circuit, permits the use of prior
inconsistent statements of a witness for impeachment only. Rule 801(d)(1) as
proposed by the Court would have permitted all such statements to be admissible
as substantive evidence, an approach followed by a small but growing number of
State jurisdictions and recently held constitutional in California v. Green, 399
U.S. 149, 90 S.Ct. 1930, 26 L. Ed. 2d 489 (1970). Although there was some
support expressed for the Court Rule, based largely on the need to counteract
the effect of witness intimidation in criminal cases, the Committee decided to
adopt a compromise version of the Rule similar to the position of the Second
Circuit. The Rule as amended draws a distinction between types of prior
inconsistent statements (other than statements of identification of a person
made after perceiving him which are currently admissible, see United States v.
Anderson, 406 F.2d 719, 720 (4th Cir.), cert. denied, 395 U.S. 967, 89 S.Ct.
2114, 23 L. Ed. 2d 753 (1969) and allows only those made while the declarant was
to cross-examination at a trial [sic] or hearing or in a deposition, to be
admissible for their truth. Compare United States v. DeSisto, 329 F.2d 929 (2d
Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L. Ed. 2d 747 (1964);
United States v. Cunningham, 446 F.2d 194 (2d Cir. 1971) (restricting the
admissibility of prior inconsistent statements as substantive evidence to those
made under oath in a formal proceeding, but not requiring that there have been
an opportunity for cross-examination). The rationale for the committee’s
decision is that (1) unlike in most other situations involving unsworn or oral
statements, there can be no dispute as to whether the prior statement was made;
and (2) the context of a formal proceeding, an oath, and the opportunity for
cross-examination provide firm additional assurances of the reliability of the
prior statement.

Report of Senate Committee on the Judiciary

Rule 801 defines what is and what is not hearsay for the purpose of admitting
a prior statement as substantive evidence. A prior statement of a witness at a
trial or hearing which is inconsistent with his testimony if, of course, always
admissible for the purpose of impeaching the witness’ credibility.

As submitted by the Supreme Court, subdivision (d)(1)(A) made admissible as
substantive evidence the prior statement of a witness inconsistent with his
present testimony.

The House severely limited the admissibility of prior inconsistent statements
by adding a requirement that the prior statement must have been subject to
cross-examination, thus precluding even the use of grand jury statements. The
requirement that the prior statement must have been subject to cross-examination
appears unnecessary since this rule comes into play only when the witness
testifies in the present trial. At that time, he is on the stand and can explain
an earlier position and be cross-examined as to both.

The requirement that the statement be made under oath also appears
unnecessary. Notwithstanding the absence of an oath contemporaneous with the
statement, the witness, when on the stand, qualifying or denying the prior
statement, is under oath. In any event, of all the many recognized exceptions to
the hearsay rule, only one (former testimony) requires that the out-of-court
statement have been made under oath. With respect to the lack of evidence of the
demeanor of the witness at the time of the prior statement, it would be
difficult to improve upon Judge Learned Hand’s observation that when the jury
decides that the truth is not what the witness says now but what he said before,
they are still deciding from what they see and hear in court. [footnote omitted]

The rule as submitted by the Court has positive advantages. The prior
statement was made nearer in time to the events, when memory was fresher and
intervening influences had not been brought into play. A realistic method is
provided for dealing with the turncoat witness who changes his story on the
stand. [footnote omitted]

New Jersey, California, and Utah have adopted a rule similar to this one; and
Nevada, New Mexico, and Wisconsin have adopted the identical federal rule.

For all of these reasons, we think the House amendment should be rejected and
the rule as submitted by the Supreme Court reinstated. [A footnote then states:
"It would appear that some of the opposition to this Rule is based on a concern
that a person could be convicted solely upon evidence admissible under this
Rule. The Rule, however is not addressed to the question of the sufficiency of
evidence to send a case to the jury, but merely as to its admissibility. Factual
circumstances could well arise where, if this were the sole evidence, dismissal
would be appropriate."]

Conference Report

The House bill provides that a statement is not hearsay if the declarant
testifies and is subject to cross-examination concerning the statement and if
the statement is inconsistent with his testimony and was given under oath
subject to cross-examination and subject to the penalty of perjury at a trial or
hearing or in a deposition.

The Conference adopts the Senate amendment with an amendment, so that the
rule now requires that the prior inconsistent statement be give under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding, or
in a deposition. The rule as adopted covers statements before a grand jury.
Prior inconsistent statements may, of course, be used for impeaching the
credibility of a witness. When the prior inconsistent statement is one made by a
defendant in a criminal case, it is covered by Rule 801(d)(2).

Advisory Committee’s Note

(B) Prior consistent statements traditionally have been admissible to rebut
charges of recent fabrication or improper influence or motive but not as
substantive evidence. Under the rule they are substantive evidence. The prior
statement is consistent with testimony given on the stand, and, if the opposite
party wishes to open the door for its admission in evidence, no sound reason is
apparent why it should not be received generally.

Advisory Committee’s Note

(C) The admission of evidence of identification finds substantial support,
although it falls beyond a doubt in the category of prior out-of-court
statements. Illustrative are People v. Gould, 54 Cal. 2d 621, 7 Cal. Rptr. 273,
354 P.2d 865 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958)l State v.
Simmons, 63 Wash. 2d 7, 385 P.2d 389 (1963); California Evidence Code § 1238;
New Jersey Evidence Rule 63(1)(c); N.Y. Code of Criminal Procedure § 393-b.
Further cases are found in 4 Wigmore § 1130. The basis is the generally
unsatisfactory and inconclusive nature of courtroom identifications as compared
with those made at an earlier time under less suggestive conditions. The Supreme
Court considered the admissibility of evidence of prior identification in
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed. 2d 1178 (1967).
Exclusion of lineup identification was held to be required because the accused
did not then have the assistance of counsel. Significantly, the Court carefully
refrained from placing the decision on the ground that testimony as to the
making of a prior out-of-court identification ("That’s the man") violated either
the hearsay rule or the right of confrontation because not made under oath,
subject to immediate cross-examination, in the presence of the trier. Instead
the Court observed:

"There is a split among the States concerning the admissibility of prior
extra-judicial identifications, as independent evidence of identity, both by
the witness and third parties present at the prior identification. See 71
A.L.R. 2d 449. It has been held that the prior identification is hearsay,
and, when admitted through the testimony of the identifier, is merely a
prior consistent statement, The recent trend, however, is to admit the prior
identification under the exception that admits as substantive evidence a
prior communication by a witness who is available for cross-examination at
the trial. See 5 A.L.R. 2d Later Case Service 1225-1228...." 388 U.S. at
272, n. 3, 87 S.Ct. at 1956.

Advisory Committee’s Note

(2) Admissions. Admissions by a party-opponent are excluded from the
category of hearsay on the theory that their admissibility in evidence is the
result of the adversary system rather than satisfaction of the conditions of the
hearsay rule. Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85
U. Pa. L. Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4
Wigmore § 1048. No guarantee of trustworthiness is required in the case of an
admission. The freedom which admissions have enjoyed from technical demands of
searching for an assurance of trustworthiness in some against-interest
circumstance, and from the restrict influences of the opinion rule and the rule
requiring firsthand knowledge, when taken with the apparently prevalent
satisfaction with the results, calls for generous treatment of this avenue to
admissibility.

The rule specifies five categories of statements for which the responsibility
of a party is considered sufficient to justify reception in evidence against
him:

(A) A party’s own statement is the classic example of an admission. If he has
a representative capacity and the statement is offered against him in that
capacity, no inquiry whether he was acting in the representative capacity in
making the statement is required; the statement need only be relevant to
representative affairs. To the same effect is California Evidence Code § 1220.
Compare Uniform Rule 63(7), requiring a statement to be made in a representative
capacity to be admissible against a party in the representative capacity.

(B) Under established principles an admission may be made by adopting or
acquiescing in the statement of another. While knowledge of contents would
ordinarily be essential, this is not inevitably so: "X is a reliable person and
knows what he is talking about." See McCormick § 246, p. 527, n. 15. Adoption or
acquiescence may be manifested in any appropriate manner. When silence is relied
upon, the theory is that the person would, under the circumstances, protest the
statement made in his presence, if untrue. The decision in each case calls for
an evaluation in terms of probable human behavior. In civil cases, the results
have generally been satisfactory. In criminal cases, however, troublesome
questions have been raised by decisions holding that failure to deny is an
admission: the inference is a fairly weak one, to begin with; silence may be
motivated by advice of counsel or realization that "anything you say may be used
against you"; unusual opportunity is afforded to manufacture evidence; and
encroachment upon the privilege against self-incrimination seems inescapably to
be involved. However, recent decisions of the Supreme Court relating to
custodial interrogation and the right to counsel appear to resolve these
difficulties. Hence the rule contains no special provisions concerning the
failure to deny in criminal cases.

(C) No authority is required for the general proposition that a statement
authorized by a party to be made should have the status of an admission by the
party. However, the question arises whether only statements to third persons
should be so regarded, to the exclusion of statements by the agent to the
principal. The rule is phrased broadly so as to encompass both. While it may be
argued that the agent authorized to make statements to his principal does not
speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to
an outsider has not generally been thought to be an essential characteristic of
an admission. Thus a party’s books or records are usable against him, without
regard to any intent to disclose to third persons. 5 Wigmore § 1557. See also
McCormick § 78, pp. 159-161. In accord is New Jersey Evidence Rule 63(8)(a). Cf.
Uniform Rule 63(8)(a) and California Evidence Code § 1222 which limit status as
an admission in this regard to statements authorized by the party to be made
"for" him, which is perhaps an ambiguous limitation to statements to third
persons. Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand. L. Rev.
855,860-861 (1961).

(D) The tradition has been to test the admissibility of statements by agents,
as admissions, by applying the usual test of agency. Was the admission made by
the agent acting in the scope of his employment? Since few principals employ
agents for the purpose of making damaging statements, the usual result was
exclusion of the statement. Dissatisfaction with this loss of valuable and
helpful evidence has been increasing. A substantial trend favors admitting
statements related to a matter within the scope of the agency or employment.
Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart
Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S. App. D.C. 282,
292 F.2d 775, 784 (1961); Martin v. Savage Truck Line, 121 F. Supp. 417 (D.D.C.
1954), and numerous state court decisions collected in 4 Wigmore, 1964 Supp.,
pp. 66-73, with comments by the editor that the statements should have been
excluded as not within the scope of agency. For the traditional view see
Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81, 85 (2d Cir. 1964) and
cases cited therein. Similar provisions are found in Uniform Rule 63(9)(a),
Kansas Code of Civil Procedure § 60-460(i)(1), and New Jersey Evidence Rule
63(9)(a).

(E) The limitation upon the admissibility of statements of co-conspirators to
those made "during the course and in furtherance of the conspiracy" is in the
accepted pattern. While the broadened view of agency taken in item (iv) might
suggest wider admissibility of statements of co-conspirators, the agency of
conspiracy is at best a fiction and ought not to serve as a basis for
admissibility beyond that already established. See Levi, Hearsay and Conspiracy,
52 Mich. L. Rev. 1159 (1954); Comment, 25 &. Chi. L. Rev. 530 (1958). The rule
is consistent with the position of the Supreme Court in denying admissibility to
statements made after the objectives of the conspiracy have either failed or
been achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.
Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418,
9 L. Ed. 2d 441 (1963). For similarly limited provisions see California Evidence
Code § 1223 and New Jersey Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).

Report of Senate Committee on the Judiciary

The House approved the long-accepted rule that "a statement by a
co-conspirator of a party during the course and in furtherance of the
conspiracy" is not hearsay as it was submitted by the Supreme Court. While the
rule refers to a co-conspirator, it is this committee’s understanding that the
rule is meant to carry forward the universally accepted doctrine that a joint
venturer is considered as a co-conspirator for the purposes of this rule even
though no conspiracy has been charged. United States v. Rinaldi, 3939 F.2d 97,
99 (2d Cir.), cert. denied 393 U.S. 913, 89 S.Ct. 233, 21 L. Ed. 2d 198 (1968);
United States v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 1969).

The provision excepting from the operation of the rule hearsay which is made
admissible by other rules adopted by the Supreme Court or by Act of Congress
continues the admissibility thereunder of hearsay which would not qualify under
these Evidence Rules. The following examples illustrate the working of the
exception:

FEDERAL RULES OF CIVIL PROCEDURE

Rule 4(g): proof service by affidavit.

Rule 32: admissibility of depositions.

Rule 43(e): affidavits when motion based on facts not appearing of record.

Rule 56: affidavits in summary judgment proceedings.

Rule 65(b): showing by affidavit for temporary restraining order.

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 4(a): affidavits to show grounds for issuing warrants.

(Rule 12(b)(4): affidavits to determine issues of fact in connection with
motions.

ACTS OF CONGRESS

10 U.S.C. § 7730: affidavits of unavailable witnesses in actions for damages
caused by vessel in naval service, or towage or salvage of same, when taking of
testimony or bringing of action delayed or stayed on security grounds.

29 U.S.C. § 161(4): affidavit as proof of service in NLRB proceedings.

The amendment provides that the foundation requirements of Rule 803(6) can be
satisfied under certain circumstances without the expense and inconvenience of
producing time-consuming foundation witnesses. Under current law, courts have
generally required foundation witnesses to testify. See, e.g., Tongil Co.,
Ltd. v. Hyundai Merchant Marine Corp., 968 F.2d 999 (9th Cir. 1992)
(reversing judgment based on business records where a qualified person filed an
affidavit but did not testify). Protections are provided by the authentication
requirements of Rule 902(11) for domestic records, Rule 902(12) for foreign
records in civil cases, and 18 U.S.C §§ 3505 for foreign records in criminal
cases.

Advisory Committee’s Note to 1997 Amendment

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and
transferred to a new Rule 807. This was done to facilitate additions to Rules
803 and 804. No change in meaning is intended.

Note by Federal Judicial Center

The rule enacted by the Congress retains the 24 exceptions set forth in the
rule prescribed by the Supreme Court. Three of the exceptions, number (6), (8),
and (24) have been amended in respects that may fairly be described as
substantial. Others, numbered (5), (7), (14), and (16), have been amended in
lesser ways. The remaining 17 are unchanged. The amendments are, in numerical
order, as follows:

Exception (5) as prescribed by the Supreme Court was amended by inserting
after "made" the phrase "or adopted by the witness."

Exception (6) as prescribed by the Supreme Court was amended by substituting
the phrase, "if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all," in place of "all in the
course of a regularly conducted activity"; by substituting "source" in place of
"sources"; by substituting the phrase, "the method or circumstances of
preparation," in place of "other circumstances"; and by adding the second
sentence.

Exception (7) as prescribed by the Supreme Court was amended by substituting
the phrase, "kept in accordance with the provisions of paragraph (6)," in place
of "of a regularly conducted activity." The exception prescribed by the Supreme
Court included a comma after "memoranda," while the congressional enactment does
not.

Exception (8) as prescribed by the Supreme Court was amended by inserting in
item (B) after "law" the phrase, "as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel," and by substituting in item (C)
the phrase "civil actions and proceedings," in place of "civil cases."

Exception (14) as prescribed by the Supreme Court was amended by substituting
"authorizes" in place of "authorized."

Exception (16) as prescribed by the Supreme Court was amended by substituting
the phrase, "the authenticity of which," in place of "whose authenticity."

Exception (24) as prescribed by the Supreme Court was amended by substituting
"equivalent" in place of "comparable," and adding all that appears after
"trustworthiness" in the exception as enacted by the Congress.

Advisory Committee’s Note

The exceptions are phrased in terms of non-application of the hearsay rule,
rather than in positive terms of admissibility, in order to repel any
implication that other possible grounds for exclusion are eliminated from
consideration.

The present rule proceeds upon the theory that under appropriate
circumstances a hearsay statement may possess circumstantial guarantees of
trustworthiness sufficient to justify non-production of the declarant in person
at the trial even though he may be available. The theory finds vast support in
the many exceptions to the hearsay rule developed by the common law in which
unavailability of the declarant is not a relevant fact. The present rule is a
synthesis of them, with revision where modern developments and conditions are
believed to make that course appropriate.

In a hearsay situation, the declarant is, of course, a witness, and neither
this rule nor Rule 804 dispenses with the requirement of first-hand knowledge.
It may appear from his statement be inferable from circumstances. See Rule 602.

Exceptions (1) and (2). In considerable measure these two examples
overlap, though based on somewhat different theories. The most significant
practical difference will lie in the time lapse allowable between even and
statement.

The underlying theory of Exception (1) is that substantial contemporaneity of
event and statement negative the likelihood of deliberate or conscious
misrepresentation. Moreover, if the witness is the declarant, he may be examined
on the statement. If the witness is not the declarant, he may be examined as to
the circumstances as an aid in evaluating the statement. Morgan, Basic Problems
of Evidence 340-341 (1962).

The theory of Exception (2) is simply that circumstances may produce a
condition of excitement which temporarily stills the capacity of reflection and
produces utterances free of conscious fabrication. 6 Wigmore § 1747, p. 135.
Spontaneity is the key factor in each instance, though arrived at by somewhat
different routes. Both are needed in order to avoid needless niggling.

With respect to the time element, Exception (1) recognizes that in
many, if not most, instances precise contemporaneity is not possible, and hence
a slight lapse is allowable. Under Exception (2) the standard of measurement is
the duration of the statement of excitement. "How long can excitement prevail?
Obviously there are no pat answers and the character of the transaction or event
will largely determine the significance of the time factor." Slough, Spontaneous
Statements and State of Mind, 46 Iowa L. Rev. 224, 243 (1961); McCormick § 272,
p. 580.

Participation by the declarant is not required: a non-participant may be
moved to describe what he perceives, and one may be startled by an event in
which he is not an actor. Slough, supra; McCormick, supra; 6 Wigmore § 1755;
Annot., 78 A.L.R. 2d 300.

Whether proof of the startling event may be made by the statement
itself is largely an academic question, since in most cases there is present at
least circumstantial evidence that something of a startling nature must have
occurred. For cases in which the evidence consists of the condition of the
declarant (injuries, state of shock), see Travellers’ Insurance Co. v. Mosley,
75 U.S. (8 Wall.) 397, 19 L. Ed. 437 (1869); Wheeler v. United States, 93 U.S.
App. D.C. 159, 211 F.2d 19 (1953), cert. denied 347 U.S. 1019, 74 S.Ct. 876, 98
L. Ed. 1140;Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir. 1955);
Lampe v. Untied States, 97 U.S. App. D.C. 160, 229 F.2d 43 (1956). Nevertheless,
on occasion the only evidence may be the content of the statement itself, and
rulings that it may be sufficient are described as "increasing," Slough, supra
at 246, and as the "prevailing practice," McCormick § 262, p. 579. Illustrative
are Armour & Co. v. Industrial Commission, 78 Colo. 569, 243 P. 546 (1926);
Young v. Steward, 191 N.C. 297, 131 S. E. 735 (1926). Moreover, under Rule
104(a) the judge is not limited by the hearsay rule in passing upon the
preliminary questions of fact.

Permissible subject matter of the statement is limited under Exception
(1) to description or explanation of the event or condition, the assumption
being that spontaneity, in the absence of a startling event, may extend no
further. In Exception (2), however, the statement need only "relate" to the
startling event or condition, thus affording a broader scope of subject matter
coverage. 6 Wigmore §§ 1750, 1754. See Sanitary Grocery Co. v. Snead, 67 App.
D.C. 129, 90 F.2d 374 91937), slip-and-fall case sustaining admissibility of
clerk’s statement, "That has been on the floor for a couple of hours," and
Murphy Auto Parts Co. v. Ball, 101 U.S. app. D.C. 416, 249 F.2d 508 (1957),
upholding admission, on issue of driver’s agency, of his statement that he had
to call on a customer and was in a hurry to get home. Quick, Hearsay,
Excitement, Necessity and the Uniform Rules: A Reappraisal of Rule 63(4), 6
Wayne L. Rev. 204, 206-209 (1960).

Exception (3) is essentially a specialized application of Exception (1),
present separately to enhance its usefulness and accessibility. See McCormick
§§ 265, 268.

The exclusion of "statements of memory or belief to prove the fact remembered
or believed" is necessary to avoid the virtual destruction of the hearsay rule
which would otherwise result from allowing state of mind, provable by a hearsay
statement, to serve as the basis for an inference of the happening of the event
which produced the state of mind. Shepard v. United States, 290 U.S. 96, 54 S.Ct.
22, 78 L. Ed. 196 (1933); Maguire, The Hillmon Case—Thirty-three Years After, 38
Harv. L. Rev. 709, 719-731 (1925); Hinton, States of Mind and the Hearsay Rule,
1 U. Chi. L. Rev. 394, 421-423 (1934). The rule of Mutual Life Ins. Co. v.
Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L. Ed. 706 (1892), allowing evidence of
intention as tending to prove the doing of the act intended, is, of course, left
undisturbed.

The carving out, from the exclusion mentioned in the preceding paragraph, of
declarations relating to the execution, revocation, identification, or terms of
declarant’s will represents an ad hoc judgment which finds ample reinforcement
in the decisions, resting on practical grounds of necessity and expediency
rather than logic. McCormick § 271, pp. 577-578; Annot. 34 A.L.R. 2d 588, 62
A.L.R. 2d 855. A similar recognition of the need for and practical value of this
kind of evidence is found in California Evidence Code § 1260.

Report of House Committee on the Judiciary

Rule 803(3) was approved in the form submitted by the Court to Congress.
However, the Committee intends that the Rule be construed to limit the doctrine
of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-300, 12 S.Ct. 909,
912-914, 36 L. Ed. 706 (1892), so as to render statements of intent by a
declarant admissible only to prove his future conduct, not the future conduct of
another person.

Advisory Committee’s Note

Exception (4). Even those few jurisdictions which have shied away from
generally admitting statements of present condition have allowed them if made to
a physician for purposes of diagnosis and treatment in view of the patient’s
strong motivation to be truthful. McCormick § 266, p. 563. The same guarantee of
trustworthiness extends to the statements of past conditions and medical
history, made for purposes of diagnosis or treatment. It also extends to
statements as to causation, reasonably pertinent to the same purposes, in accord
with the current trend, Shell Oil Co. v. Industrial Commission, 2 Ill. 2d 590,
119 N. E. 2d 224 (1954); McCormick § 266, p. 564; New Jersey Evidence Rule
63(12)(c). Statements as to fault would not ordinarily qualify under this latter
language. Thus a patient’s statement that he was struck by an automobile would
qualify but not his statement that the car was driven through a red light. Under
the exception the statement need not have been made to a physician. Statements
to hospital attendants, ambulance drivers, or even members of the family might
be included.

Conventional doctrine has excluded from the hearsay exception, as not within
its guarantee of truthfulness, statements to a physician consulted only for the
purpose of enabling him to testify. While these statements were not admissible
as substantive evidence, the expert was allowed to state the basis of his
opinion, including statements of this kind. The distinction thus called for was
one most unlikely to be made by juries. The rule accordingly rejects the
limitation. This position is consistent with the provision of Rule 703 that the
facts on which expert testimony is based need not be admissible in evidence if
of a kind ordinarily relied upon by experts in the field.

Report of House Committee on the Judiciary

After giving particular attention to the question of physical examination
made solely to enable a physician to testify, the Committee approved Rule 803(4)
as submitted to Congress, with the understanding that it is not intended in any
way to adversely affect present privilege rules or those subsequently adopted.

Report of Senate Committee on the Judiciary

The House approved this rule as it was submitted by the Supreme Court "with
the understanding that it is not intended in any way to adversely affect present
privilege rules." We also approve this rule, and we would point out with respect
to the question of its relation to privileges, it must be read in conjunction
with rule 35 of the Federal Rules of Civil Procedure which provides that
whenever the physical or mental condition of a party (plaintiff or defendant) is
in controversy, the court may require him to submit to an examination by a
physician. It is these examinations which will normally be admitted under this
exception.

Advisory Committee’s Note

Exception (5). A hearsay exception for recorded recollection is generally
recognized and has been described as having "long been favored by the federal
and practically all the state courts that have had occasion to decide the
question." United States v. Kelly, 349 F.2d 720, 770 (2d Cir. 1965), citing
numerous cases and sustaining the exception against a claimed denial of the
right of confrontation. Many additional cases are cited in Annot., 82 A.L.R. 2d
473, 520. The guarantee of trustworthiness is found in the reliability inherent
in a record made while events were still fresh in mind and accurately reflecting
them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212 (1887).

The principal controversy attending the exception has centered, not upon the
propriety of the exception itself, but upon the question whether a preliminary
requirement of impaired memory on the part of the witness should be imposed. The
authorities are divided. If regard be had only to the accuracy of the evidence,
admittedly impairment of the memory of the witness adds nothing to it and should
not be required. McCormick § 277, p. 593; 3 Wigmore § 738, p. 76; Jordan v.
People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied 373 U.S. 944, 83 S.Ct.
1553, 10 L. Ed. 2d 699; Hall v. State, 223 Md. 158, 162 A. 2d 751 (1960); State
v. Bindhammer, 44 N. J. 372, 209 A. 2d 124 (1965). Nevertheless, the absence of
the requirement, it is believed, would encourage the use of statements carefully
prepared for purposes of litigation under the supervision of attorneys,
investigators, or claim adjusters. Hence the example includes a requirement that
the witness not have "sufficient recollection to enable him to testify fully and
accurately." To the same effect are California Evidence Code § 1237 and New
Jersey Rule 63(1)(b), and this has been the position of the federal courts.
Vicksburg & Meridian R.R. v. O’Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L. Ed. 299
(1886); Ahern v. Webb, 268 F.2d 45 (10th Cir. 1959); and see N.L.R.B. v. Hudson
Pulp and Paper Corp., 273 F.2d 660, 665 (5th Cir. 1960); N.L.R.B. v. Federal
Dairy Co., 297 F.2d 487 (1st Cir. 1962). But cf. United States v. Adams, 385
F.2d 548 (2d Cir. 1967).

No attempt is made in the exception to spell out the method of establishing
the initial knowledge or the contemporaneity and accuracy of the record, leaving
them to be dealt with as the circumstances of the particular case might
indicate. Multiple person involvement in the process of observing and recording,
as in Rathbun v. Brancatella, 93 N. J. L. 222, 107 A. 279 (1919), is entirely
consistent with the exception.

Locating the exception at this place in the scheme of the rules is a matter
of choice. There were two other possibilities. The first was to regard the
statement as one of the group of prior statements of a testifying witness which
are excluded entirely from the category of hearsay by Rule 802(d)(1). That
category, however, requires that declarant be "subject to cross-examination," as
to which the impaired memory aspect of the exception raises doubts. The other
possibility was to include the exception among those covered by Rule 804. Since
unavailability is required by that rule and lack of memory is listed as a
species of unavailability by the definition of the term in rule 804(a)(3), that
treatment at first impression would seem appropriate. The fact is, however, that
the unavailability requirement of the exception is of a limited and peculiar
nature. Accordingly, the exception is located at this point rather than in the
context of a rule where unavailability is conceived of more broadly.

Report of House Committee on the Judiciary

Rule 803(5) as submitted by the Court permitted the reading into evidence of
a memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable him to testify
accurately and fully, "shown to have been made when the matter was fresh in his
memory and to reflect that knowledge correctly." The Committee amended this Rule
to add the words "or adopted by the witness" after the phrase "shown to have
been made," a treatment consistent with the definition of "statement" in the
Jencks Act, 18 U.S.C. 3500. Moreover, it is the Committee’s understanding that a
memorandum or report, although barred under this rule, would nonetheless be
admissible if it came within another hearsay exception. This last stated
principle is deemed applicable to all the hearsay rules.

Report of Senate Committee on the Judiciary

Rule 803(5) as submitted by the Court permitted the reading into evidence of
a memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable him to testify
accurately and fully, "shown to have been made when the matter was fresh in his
memory and to reflect that knowledge correctly." The House amended the rule to
add the word "or adopted by the witness" after the phrase "shown to have been
made, " language parallel to the Jencks Act. [footnote omitted]

The committee accepts the House amendment with the understanding and belief
that it was not intended to narrow the scope of applicability of the rule. In
fact, we understand it to clarify the rule’s applicability to a memorandum
adopted by the witness as well as one made by him. While the rule as submitted
by the Court was silent on the question of who made the memorandum, we view the
House amendment as a helpful clarification, noting, however, that the Advisory
Committee’s note to this rule suggests that the important thing is the accuracy
of the memorandum rather than who made it.

The committee does not view the House amendment as precluding admissibility
in situations in which multiple participants are involved.

When the verifying witness has not prepared the report, but merely examined
it, and found it accurate, he has adopted the report, and it is therefore
admissible. The rule should also be interpreted to cover other situations
involving multiple participants, i.e., employer dictating to secretary,
secretary making memorandum at direction of employer, or information being
passed along a chain of persons, as in Curtis v. Bradley, [65 Conn. 99, 31 Atl.
591 (1984)-relocating part of footnote].

The committee also accepts the understanding of the House that a memorandum
or report, although barred under this rule, would nonetheless be admissible if
it came within another hearsay exception. We consider this principle to be
applicable to all the hearsay rules.

Exception (6) represents an area which has received much attention from
those seeking to improve the law of evidence. The Commonwealth Fund Act was the
result of a study completed in 1927 by a distinguished committee under the
chairmanship of Professor Morgan. Morgan et al., The Law of Evidence: Some
Proposals for its Reform 63 (1927). With changes to minor to mention, it was
adopted by Congress in 1936 as the rule for federal courts. 28 U.S.C. § 1732. A
number of states took similar action. The Commissioners on Uniform State laws in
1936 promulgated the Uniform Business Records as Evidence Act, 9A U. L. A. 506,
which has acquired a substantial following in the states. Model Code Rule 514
and Uniform Rule 63(13) also deal with the subject. Difference of varying
degrees of importance exist among these various treatments.

These reform efforts were largely within the context of business and
commercial records, as the kind usually encouraged, and concentrated
considerable attention upon relaxing the requirement of producing witnesses, or
accounting for the non-production of, all participants in the process of
gathering, transmitting, and recording information which the common law had
evolved as a burdensome and crippling aspect of using records of this type. In
their areas of primary emphasis on witnesses to be called and the general
admissibility of ordinary business and commercial records, the Commonwealth Fund
Act and the Uniform Act appear to have worked well. The exception seeks to
preserve their advantages.

On the subject of what witnesses must be called, the Commonwealth Fund Act
eliminated the common law requirement of calling or accounting for all
participants by failing to mention it. United States v. Mortimer, 188 F.2d 2655
(2d Cir. 1941); La Porte v. United States, 300 F.2d 878 (9th Cir. 1962);
McCormick § 290, p. 608. Model Code Rule 514 and Uniform Rule 63(13) did
likewise. The Uniform Act, however, abolished the common law requirement in
express terms, providing that the requisite foundation testimony might be
furnished by "the custodian or other qualified witness." Uniform Business
Records as Evidence Act, § 2; 9A U. L. A. 506. The exception follows the Uniform
Act in this respect.

The element of unusual reliability of business records is said variously to
be supplied by systematic checking, by regularity and continuity which produces
habits of precision, by actual experience of business in relying upon them, or
by a duty to make an accurate record as part of a continuing job or occupation.
McCormick §§ 281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.
Rev. 276 (1961). The model statutes and rules have sought to capture these
factors and to extend their impact by employing the phrase "regular course of
business," in conjunction with a definition of "business" far broader than its
ordinarily accepted meaning. The result is a tendency unduly to emphasize a
requirement of routineness and repetitiveness and an insistence that other types
of records be squeezed into the fact patterns which give rise to traditional
business records....

Amplification of the kinds of activities producing admissible records has
given rise to problems which conventional business records by their nature
avoid. They are problems of the source of the recorded information, of entries
in opinion form, of motivation, and of involvement as participant in the matters
recorded.

Sources of information presented no substantial problem with ordinary
business records. All participants, including the observer or participant
furnishing the information to be recorded, were acting routinely, under a duty
of accuracy, with employer reliance on the result, or in short "in the regular
course of business." If, however, the supplier of the information does not act
in the regular course, an essential link is broken; the assurance of accuracy
does not extend to the information itself, and the fact that it may be recorded
with scrupulous accuracy is of no avail. An illustration is the police report
incorporating information obtained from a bystander: the officer qualifies as
acting in the regular course but the informant does not. The leading case,
Johnson v. Lutz, 253 N.Y. 124, 170 N. E. 517 (1930), held that a report thus
prepared was inadmissible. Most of the authorities have agreed with the
decision. Gencarella v. Fyfe, 171 F.2d 419 (1st. Cir. 1948); Gordon v. Robinson,
210 F.2d 192 (3d Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L. Ed.
2d 1148; Yates v. Bair Transport, Inc. 249 F. Supp. 681 (S.D.N.Y. 1965); Annot.,
69 A.L.R. 2d 1148. Cf. Wigmore § 1530a, n. 1, pp. 391-392. The point is not
dealt with specifically in the Commonwealth Fund Act, the Uniform Act, or
Uniform Rule 63(13). However, Model Code Rule 514 contains the requirement "that
it was the regular course of that business for one with personal knowledge ...
to make such a memorandum or record or to transmit information thereof to be
included in such a memorandum or record...." The rule follows this lead in
requiring an informant with knowledge acting in the course of the regularly
conducted activity.

Problems of the motivation of the informant have been a source of difficulty
and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L. Ed.
645 (1943), exclusion of an accident report made by the since deceased engineer,
offered by a defendant railroad trustees in a grade grossing collision case, was
upheld. The report was not "in the regular course of business," not a record of
the systematic conduct of the business as a business, said the Court. The report
was prepared for use in litigating, not railroading. While the opinion mentions
the motivation of the engineer only obliquely, the emphasis on records of
routine operations is significant only by virtue of impact on motivation to be
accurate. Absence of routineness raises lack of motivation to be accurate. The
opinion of the Court of Appeals had gone beyond mere lack of motive to be
accurate: the engineer’s statement was "dripping with motivations to
misrepresent." Hoffman v. Palmer, 129 F.2d 976, 99 (2d Cir. 1942). The direct
introduction of motivation is a disturbing factor, since absence of motive to
misrepresent has not traditionally been a requirement of the rule; that records
might be self-serving has not been a ground for exclusion. Laughlin, Business
Records and the Like, 46 Iowa L. Rev. 276, 285 (1961). As Judge Clark said in
his dissent, "I submit that there is hardly a grocer’s account book which could
not be excluded on that basis." 129 F.2d at 1002. A physician’s evaluation
report of a personal injury litigant would appear to be in the routine of his
business. If the report is offered by the party at whose instance it was made,
however, it has been held inadmissible, Yates v. Bair Transport, Inc., 249 F.
Supp. 681 (S.D.N.Y. 1965), otherwise if offered by the opposite party, Korte v.
New York, N.H. & H. R. Co., 191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S.
868, 72 S.Ct. 108, 96 L. Ed. 652.

The decisions hinge on motivation and which party is entitled to be concerned
about it. Professor McCormick believed that the doctor’s report or the accident
report were sufficiently routine to justify admissibility. McCormick § 287, p.
604. Yet hesitation must be experienced in admitting everything which is
observed and recorded in the course of a regularly conducted activity. Efforts
to set a limit are illustrated by Hartzog v. United States, 217 F.2d 706 (4th
Cir. 1954), error to admit worksheets made by since deceased deputy collector in
preparation for ht instant income tax evasion prosecution, and United States v.
Ware, 247 F.2d 698 (7th Cir. 1957), error to adit narcotics agents’ records of
purchases. See also Exception (8), infra, as to the public record aspects of
records of this nature. Some decisions have been satisfied as to motivation of
an accident report if made pursuant to statutory duty. United States v. New York
Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962); Taylor v. Baltimore &
O. R. Co., 344 F.2d 281 (2d Cir. 1965), since the report was oriented in a
direction other than the litigation which ensured. Cf. Matthews v. United
States, 217 F.2d 409 (5th Cir. 1954). The formulation of specific terms which
would assure satisfactory results in all cases is not possible. Consequently the
rule proceeds from the base that records made in the course of a regularly
conducted activity will be taken as admissible but subject to authority to
exclude if "the sources of information or other circumstances indicate lack of
trustworthiness."

The form which the "record" may assume under the rule is described broadly as
a "memorandum, report, record, or date compilation, in any form." The expression
"data compilation" is used as broadly descriptive of any means of storing
information other than the conventional words and figures written or documentary
form. It includes, but is by no means limited to, electronic computer storage.
The term is borrowed from Revised Rule 34(a) of the Rules of Civil Procedure.

Report of House Committee on the Judiciary

Rule 803(6) as submitted by the Court permitted a record made "in the course
of a regularly conducted activity" to be admissible in certain circumstances.
The Committee believed there were insufficient guarantees of reliability in
records made in the course of activities falling outside the scope of "business"
activities as that term is broadly defined in 28 U.S.C. 1732. Moreover, the
Committee concluded that the additional requirement of Section 1732 that it must
have been the regulare practice of a business to make the record is a necessary
further assurance of its trustworthiness. The Committee accordingly amended the
Rule to incorporate these limitations.

Report of Senate Committee on the Judiciary

Rule 803(6) as submitted by the Supreme Court permitted a record made in the
course of a regularly conducted activity to be admissible in certain
circumstances. This rule constituted a broadening of the traditional business
records hearsay exception which has been long advocated by scholars and judges
active in the law of evidence.

The House felt there were insufficient guarantees of reliability of records
not within a broadly defined business records exception. We disagree. Even under
the House definition of "business" including profession, occupation, and
"calling of every kind," the records of many regularly conducted activities
will, or may be excluded from evidence. Under the principle of ejusdem generis,
the intent of "calling of every kind" would seem to be related to work-related
endeavors—e.g., butcher, baker, artist, etc.

Thus, it appears that the records of many institutions or groups might not be
admissible under the House amendments. For example, schools, churches, and
hospitals will not normally be considered businesses within the definition. Yet,
these are groups which keep financial and other records on a regular basis in a
manner similar to business enterprises. We believe these records are of
equivalent trustworthiness and should be admitted into evidence.

Three states, which have recently codified their evidence rules, have adopted
the Supreme Court version of rule 803(6), providing for admission of memoranda
of a "regularly conducted activity." None adopted the words "business activity"
used in the House amendment. [A footnote citing the rules of Nevada, New Mexico
and Wisconsin was added here by the Senate Committee.]

Therefore, the committee deleted the word "business" as it appears before the
word "activity". The last sentence then is unnecessary and was also deleted.

It is the understanding of the committee that the use of the phrase "person
with knowledge" is not intended to imply that the party seeking to introduce the
memorandum report, record, or data compilation must be able to produce, or even
identify, the specific individual upon whose first-hand knowledge the
memorandum, report, record or data compilation was based. A sufficient
foundation for the introduction of such evidence will be laid if the party
seeking to introduce the evidence is able to show that it was the regular
practice of the activity to base such memorandums, reports, records, or data
compilations upon a transmission from a person with knowledge, e.g., in the case
of the content of a shipment of goods, upon a report from the company’s
receiving agent or in the case of a computer printout, upon a report from the
company’s computer programmer or one who has knowledge of the particular record
system. In short, the scope of the phrase "person with knowledge" is meant to be
coterminous with the custodian of the evidence or other qualified witness. The
committee believes this represents the desired rule in light of the complex
nature of modern business organizations.

Conference Report

The House bill provides in subsection (6) that records of a regularly
conducted "business" activity qualify for admission into evidence as an
exception to the hearsay rule. "Business"is defined as including "business,
profession, occupation and calling of every kind." The Senate amendment drops
the requirement that the records be those of a "business" activity and
eliminates the definition of "business." The Senate amendment provides that
records are admissible if they are records of a regularly conducted "activity."

The Conference adopts the House provision that the records must be those of a
regularly conducted "business" activity. The Conferees changed the definition of
"business" contained in the House provision in order to make it clear that the
records of institutions and associations like schools, churches and hospitals
are also covered by Rule 803(8), which deals with public records and reports.

Advisory Committee’s Note

Exception (7). Failure of a record to mention a matter which would
ordinarily be mentioned is satisfactory evidence of its non-existence. Uniform
Rule 63(14), Comment. While probably not hearsay as defined in rule 801, supra,
decisions may be found which class the evidence not only as hearsay but also as
not within any exception. In order to set the question at rest in favor of
admissibility, it is specifically treated here. McCormick, § 289, p. 609;
Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore § 1531; Uniform Rule
63(14); California Evidence Code § 1272; Kansas Code of Civil Procedure
§ 60-460(n); New Jersey Evidence Rule 63(14).

Report of House Committee on the Judiciary

Rule 803(7) as submitted by the Court concerned the absence of entry
in the records of a "regularly conducted activity." The Committee amended this
Rule to conform with its action with respect to Rule 803(6).

Exception (8). Public records are a recognized hearsay exception at
common law and have been the subject of statutes without number. McCormick
§ 291. See, for example, 28 U.S.C. § 1733, the relative narrowness of which is
illustrated by its non-applicability to non-federal public agencies, thus
necessitating resort to the less appropriate business record exception to the
hearsay rule. Kay v. United States, 255 F.2d 476 (4th Cir. 1958). The rule makes
no distinction between federal and non-federal offices and agencies.

Justification for the exception is the assumption that a public official will
perform his duty properly and the unlikelihood that he will remember details
independently of the record. Wong Wing Foo v. McGrath, 196 F.2d 120 (9th Cir.
1952), and see Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 12, 39
S.Ct. 407, L. Ed. 889 (1919). As to items (A) and (B), further support is found
in the reliability factors underlying records of regularly conducted activities
generally. See Exception (6), supra.

(C) The more controversial area of public records is that of the so-called
"evaluative" report. The disagreement among the decisions has been due in part,
no doubt, to the variety of situations encountered, as well as to differences in
principle. Sustaining admissibility are such cases as United States v. Dumas,
149 U.S. 278, 13 S.Ct. 872, 37 L. Ed. 734 (1893), statement of account certified
by Postmaster General in action against postmaster; McCarty v. United States,
185 F.2d 520 (5th Cir. 1950), reh. denied 187 F.2d 234, Certificate of
Settlement of General Accounting Office showing indebtedness and letter from
Army official stating Government had performed, in action on contract to
purchase and remove waste food from Army camp; Moran v. Pittsburgh-Des Moines
Steel Co., 183 F.2d 467 (3d. Cir. 1950), report of Bureau of Mines as to cause
of gas tank explosion; Petition of W___, 164 F. Supp. 659 (E.D. Pa. 1958),
report by Immigration and Naturalization Service investigator that petitioner
was known in the community as wife of man to whom she was not married. To the
opposite effect and denying admissibility are Franklin v. Skelly Oil Co., 141
F.2d 568 (10th Cir. 1944), State Fire Marshal’s report of cause of gas
explosion; Lomax Transp. Co. v. United States, 183 F.2d 331 (9th Cir. 1950),
Certificate of Settlement from General Accounting Office in action for naval
supplies lost in warehouse fire; Yung Jin Teung v. Dulles, 229 F.2d 244 (2d Cir.
1956), "Status Reports" offered to justify delay in processing passport
applications.... Various kinds of evaluative reports are admissible under
federal statutes: 7 U.S.C. § 78, findings of Secretary of Agriculture prima
facie evidence of true grade of grain; 7 U.S.C. § 210(f), findings of Secretary
of Agriculture prima facie evidence in action for damages against stockyard
owner; 7 U.S.C. § 292, order by Secretary of Agriculture prima facie evidence in
judicial enforcement proceedings against producers association monopoly; 7 U.S.C.
§ 1622(h), Department of Agriculture inspection certificates of products shipped
in interstate commerce prima facie evidence; 8 U.S.C. § 1440(c), separation of
alien from military service on conditions other than honorable provable by
certificate from department in proceedings to revoke citizenship; 18 U.S.C.
§ 4245, certificate of Director of Prisons that convicted person has been
examined and found probably incompetent at time of trial prima facie evidence in
court hearing on competency; 42 U.S.C. § 269(b), bill of health by appropriate
official prima facie evidence of vessel’s sanitary history and condition and
compliance with regulations; 46 U.S.C. § 679, certificate of consul presumptive
evidence of refusal of master to transport destitute seamen to United States.
While these statutory exceptions to the hearsay rule are left undisturbed, Rule
802, the willingness of Congress to recognize a substantial measure of
admissibility for evaluative reports is a helpful guide.

Factors which may be of assistance in passing upon the admissibility of
evaluative reports include: (1) the timeliness of the investigation, McCormick,
Can the Courts Make Wider Use of Reports of Official Investigations?[,] 42 Iowa
L. Rev. 363 (1957); (2) the special skill or experience of the official, id.,
(3) whether a hearing was held and the level at which conducted, Franklin v.
Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944); (4) possible motivation problems
suggested by Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 647
(1943). Others no doubt could be added.

The formulation of an approach which would give appropriate weight to all
possible factors in every situation is an obvious impossibility. Hence the rule,
as in Exception (6), assumes admissibility in the first instance but with ample
provision for escape if sufficient negative factors are present. In one respect,
however, the rule with respect to evaluative reports under item (C) is very
specific; they are admissible only in civil cases and against the government in
criminal cases in view of the almost certain collision with confrontation rights
which would result from their use against the accused in a criminal case.

Report of the House Committee on the
Judiciary

The Committee approved Rule 803(8) without
substantive change from the form in which it was submitted by the Court. The
Committee intends that the phrase "factual findings" be strictly construed and
that evaluations or opinions contained in public reports shall not be admissible
under the Rule.

Report of Senate Committee on the Judiciary

The House approved rule 803(8), as submitted by the Supreme Court, with one
substantive change. It excluded form the hearsay exception reports containing
matters observed by police officers and other law enforcement personnel in
criminal cases. Ostensibly, the reason for this exclusion is that observations
by police officers at the scene of the crime or the apprehension of the
defendant are not as reliable as observations by public officials in other cases
because of the adversarial nature of the confrontation between the police and
the defendant in criminal cases.

The committee accepts the House’s decision to exclude such recorded
observations where the police officer is available to testify in court about his
observation. However, where he is unavailable as unavailability is defined in
rule 804(a)(4) and (a)(5), the report should be admitted as the best available
evidence. Accordingly, the committee has amended rule 803(8) to refer to the
provision of rule 804(b)(5), which allows the admission of such reports, records
or other statements where the police officer or other law enforcement officer is
unavailable because of death, then existing physical or mental illness or
infirmity, or not being successfully subject to legal process. [Congress
eventually chose not to enact this version of 804(b)(5).]

The House Judiciary Committee report contained a statement of intent that
"the phrase ‘factual findings’ in subdivision (c) be strictly construed and that
evaluations or opinions contained in public reports shall not be admissible
under the rule." The committee takes strong exception to this limiting
understanding of the application of the rule. We do not think it reflects an
understanding of the intended operation of the rule as explained in the Advisory
Committee notes to this subsection. The Advisory Committee notes on subsection
(c) of this subdivision point out that various kinds of evaluative reports are
now admissible under Federal statutes. 7 U.S.C. § 78, findings of Secretary of
Agriculture prima facie evidence of true grade of grain; 42 U.S.C. § 269(b),
bill of health by appropriate official prima facie evidence of vessel’s sanitary
history and condition and compliance with regulations. These statutory
exceptions to the hearsay rule are preserved. Rule 802. The willingness of
Congress to recognize this and other such evaluative reports provides a helpful
guide in determining the kind of reports which are intended to be admissible
under this rule. We think the restrictive interpretation of the House overlooks
the fact that while the Advisory Committee assumes admissibility in the first
instance of evaluative reports, they are not admissible if, as the rule states,
"the sources of information or other circumstances indicate lack of
trustworthiness."

The Advisory Committee explains the factors to be considered:

* * *

Factors which may be [sic] assistance in passing upon the admissibility
of evaluative reports include: (1) the timeliness of the investigation,
McCormick, Can the Courts Make Wider Use of Reports of Official
Investigations?[,] 42 Iowa L. Rev. 363 (1957); (2) the special skill or
experience of the official, id., (3) whether a hearing was held and the
level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568 (10th
Cir. 1944); (4) possible motivation problems suggested by Palmer v. Hoffman,
318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 647 (1943). Others no doubt could be
added. [footnote omitted]

The committee concludes that the language of the rule together with the
explanation provided by the Advisory Committee furnish sufficient guidance on
the admissibility of evaluative reports

Conference Report

The Senate amendment adds language, not contained in the House bill, that
refers to another rule that was added by the Senate in another amendment (Rule
804(b)(5)—Criminal law enforcement records and reports).

In view of its action on Rule 804(b)(5)(Criminal law enforcement records and
reports), the Conference does not adopt the Senate amendment and restores the
bill to the House version.

Exception (9). Records of vital statistics are commonly the subject of
particular statutes making them admissible in evidence, Uniform Vital Statistics
Act, 9C U.L.A. 350 (1957). The rule is in principle narrower than Uniform Rule
63(16) which includes reports required of persons performing functions
authorized by statute, yet in practical effect the two are substantially the
same. Comment Uniform Rule 63(16). The exception as drafted is in the pattern of
California Evidence Code § 1281.

Exception (10). The principle of proving nonoccurrence of an event by
evidence of the absence of a record which would regularly be made of the
occurrence, developed in Exception (7) with respect to regularly conducted
[business] activities, is here extended to public records of the kind mentioned
in Exceptions (8) and (9). 5 Wigmore § 1633(6), p. 519. Some harmless
duplication no doubt exists with Exception (7). For instances of federal
statutes recognizing this method of proof, see 8 U.S.C. § 1284(b), proof of
absence of alien crewman’s name from outgoing manifest prima facie evidence of
failure to detain or deport, and 42 U.S.C. § 405(c)(3), (4)(B), (4)(C), absence
of HEW record prima facie evidence of no wage wages or self-employment income.

The rule includes situations in which absence of a record may itself be the
ultimate focal point of inquiry, e.g., People v. Love, 310 Ill. 558, 142 N. E.
204 (1923), certificate of Secretary of State admitted to show failure to file
documents required by Securities Law, as well as cases where the absence of a
record is offered as proof of the nonoccurrence of an event ordinarily recorded.

The refusal of the common law to allow proof by certificate of the lack of a
record or entry has no apparent justification, 5 Wigmore § 1678(7), p. 752. The
rule takes the opposite position, as do Uniform Rule 63(17); California Evidence
Code § 1284; Kansas Code of Civil Procedure § 60-460(c); New Jersey Evidence
Rule 63 (17). Congress has recognized certification as evidence of the lack of a
record. 8 U.S.C. § 1360(d), certificate of Attorney General or other designated
officer that no record of Immigration and Naturalization Service of specified
nature or entry therein is found, admissible in alien cases.

Exception (11). Records of activities of religious organizations are
currently recognized as admissible at least to the extent of the business
records exception to the hearsay rule, 5 Wigmore § 1523, p. 371, and Exception
(6) would be applicable. However, both the business record doctrine and
Exception (6) require that the person furnishing the information be one in the
business or activity. The result is such decisions as Dailey v. Grand Lodge, 311
Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to prove fact,
date, and place of baptism, but not age of child except that he had at least
been born at the time. In view of the unlikelihood that false information would
be furnished on occasions of this kind, the rule contains no requirement that
the informant be in the course of the activity. See California Evidence Code
§ 1315 and Comment.

Exception (12). The principle of proof by certification is recognized as
to public officials in Exceptions (8) and (10), and with respect to
authentication in Rule 902. The present exception is a duplication to the extent
that it deals with a certificate by a public official, as in the case of a judge
who performs a marriage ceremony. The area covered by the rule is, however,
substantially larger and extends the certification procedure to clergymen and
the like who perform marriages and other ceremonies of administer sacraments.
Thus certificates of such matters as baptism or confirmation, as well as
marriage, are included. In principle they are as acceptable evidence as
certifications of public officers. See 5 Wigmore § 1645, as to marriage
certificates. When the person executing the certificate is not a public
official, the self-authenticating character of documents purporting to emanate
from public officials, see rule 902, is lacking and proof is required that the
person was authorized and did make the certificate. The time clement, however,
may safely be taken as supplied by the certificate, once authority and
authenticity are established, particularly in view of the presumption that a
document was executed on the date it bears.

Exception (13). Records of family history kept in family Bibles have by
long tradition been received in evidence. 5 Wigmore §§ 1495, 1496, citing
numerous statutes and decisions. See also Regulations, Social Security
Administration, 20 C.F.R. § 404.703(c), recognizing family Bible entries as
proof of age in the absence of public or church records. Opinions in the area
also include inscriptions on tombstones, publicly displayed pedigrees, and
engravings on rings. Wigmore, supra. The rule is substantially identical in
coverage with California Evidence Code § 1312.

Exception (14). The recording of title documents is a purely statutory
development. Under any theory of the admissibility of public records, the
records would be receivable as evidence of the contents of the records document,
else the recording process would be reduced to nullity. When, however, the
record is offered for the further purpose of proving execution and delivery, a
problem of lack of first-hand knowledge by the recorder, not present as to
contents, is presented. This problem is solved, seemingly in all jurisdictions,
by qualifying for recording only those documents shown by a specified procedure,
either acknowledgment or a form of probate, to have been executed and delivered.
5 Wigmore §§ 1647-1651. Thus what may appear in the rule, at first glance, as
endowing the record with an effect independently of local law and inviting
difficulties of an Erie nature under Cities Service Oil Co. v. Dunlap,
308 U.S. 208, 60 S.Ct. 201, 84 L. Ed. 196 (1939), is not present, since the
local law in fact governs under the example.

Exception (15). Dispositive documents often contain recitals of fact.
Thus a deed purporting to have been executed by an attorney in fact may recite
the existence of the power of attorney, or a deed may recite that the grantors
are all the heirs of the last record owner. Under the rule, these recitals are
exempted from the hearsay rule. The circumstances under which dispositive
documents are executed and the requirement that the recital be germane to the
purpose of the document are believed to be adequate guarantees of
trustworthiness, particularly in view of the non-applicability of the rule if
dealings with the property have been inconsistent with the documents.. The age
of the document is of no significance, though in practical application the
document will most often be an ancient one. See Uniform Rule 63(29), Comment.

Exception (16). Authenticating a document as ancient, essentially in the
pattern of the common law, as provided in Rule 901(b)(8), leaves open as a
separate question the admissibility of assertive statements contained therein as
against a hearsay objection. 7 Wigmore § 2145a. Wigmore further states that the
ancient document technique of authentication is universally conceded to apply to
all sorts of documents, including letters, records, contracts, maps, and
certificates, in addition to title documents, citing numerous decisions. Id.
§ 2145. Since most of these items are significant evidentially only insofar as
they are assertive, their admission in evidence must be as a hearsay exception.
But see 5 id. § 1573, p. 429, referring to recitals in ancient deeds as a
"limited" hearsay exception. The former position is believed to be the correct
one in reason and authority. As pointed out in McCormick § 298, danger of
mistake is minimized by authentication requirements, and age affords assurance
that the writing antedates the present controversy. See Dallas County v.
Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961), upholding
admissibility of 58-year-old newspaper story. Cf., Morgan, Basic Problems or
Evidence 364 (1962), but see id. 254.

For a similar provision, but with the added requirement that "the statement
has since generally been acted upon as true by persons having an interest in the
matter," see California Evidence Code § 1531.

Exception (17). Ample authority at common law supported the admission in
evidence of items falling in this category. While Wigmore’s text is narrowly
oriented to lists, etc., prepared for the use a trade or profession, 6 Wigmore
§ 1702, authorities are cited which include other kinds of publications, for
example, newspaper market reports, telephone directories, and city directories.
Id. §§ 1702-1706. The basis of trustworthiness is general reliance by the public
or by a particular segment of it, and the motivation of the compiler to foster
reliance by being accurate.

For similar provisions, see Uniform Rule 63(30); California Evidence Code
§ 1340; Kansas Code of Civil Procedure § 60-460(bb); New Jersey Evidence Rule
63(30). Uniform Commercial Code § 2-724 provides for admissibility in evidence
of "reports in official publications or trade journals or in newspaper or
periodicals of general circulation published as the reports of such [established
commodity] market."

Exception (18). The writers have generally favored the admissibility of
learned treatises, McCormick § 296, p. 621; Morgan, Basic Problems of Evidence
366 (1962); 6 Wigmore § 1692, with the support of occasional decisions and
rules, City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939); Lewandowski v.
Preferred Risk Mut. Ins. Co., 33 Wis. 2d 69, 146 N.W. 2d 505 (1966), 66 Mich. L.
Rev. 183 (1967); Uniform Rule 63(21); Kansas Code of Civil Procedure
§ 60-460(cc), but the great weight of authority has been that learned treatises
are not admissible as substantive evidence though usable in the
cross-examination of experts. The foundation of the minority view is that the
hearsay objection must be regarded as unimpressive when directed against
treatises since a high standard of accuracy is engendered by various factors:
the treatise is written primarily and impartially for professionals, subject to
scrutiny and exposure for inaccuracy, with the reputation of the writer at
stake. 6 Wigmore § 1692. Sound as this position may be with respect to
trustworthiness, there is, nevertheless, an additional difficulty in the
likelihood that the treatise will be misunderstood and misapplied without expert
assistance and supervision. This difficulty is recognized in the cases
demonstrating unwillingness to sustain findings relative to disability on the
basis of judicially noticed medical texts. Ross v. Gardner, 365 F.2d 554 (6th
Cir. 1966); Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Colwell v. Gardner,
386 F.2d 56 (6th Cir. 1967); Glendenning v. Ribicoff, 213 F. Supp. 301 (W. D.
Mo. 1962); Cook v. Celebrezze, 217 F. Supp. 366 (W.D. Mo. 1963); Sosna v.
Celebrezze, 234 F. Supp. 289 (E.D. Pa. 1964); and see McDaniel v. Celebrezze,
331 F.2d 426 (4th Cir. 1964). The rule avoids the danger of misunderstanding and
misapplication by limiting the use of treatises as substantive evidence to
situations in which an expert is on the stand and available to explain and
assist in the application of the treatise if desired. The limitation upon
receiving the publication itself physically in evidence, contained in the last
sentence, is designed to further this policy.

The relevance of the use of treatises on cross-examination is evident. This
use of treatises has been the subject of varied views. The most restrictive
position is that the witness must have stated expressly on direct his reliance
upon the treatise. A slightly more liberal approach still insists upon reliance
but allows it to be developed on cross-examination. Further relaxation dispenses
with reliance but requires recognition as an authority by the witness,
developable on cross-examination. The greatest liberality is found in decisions
allowing use of the treatise on cross-examination when its status as an
authority is established by any means. Annot., 60 A.L.R. 2d 77. The exception is
hinged upon this last position, which is that of the Supreme Court, Reilly v.
Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L. Ed. 63 (1949), and of recent well
considered state court decisions, City of St. Petersburg v. Ferguson, 193 So. 2d
648 (Fla.-App. 1966), cert. denied Fla. 201 So. 2d 556; Darling v. Charleston
Memorial Community Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965); Dabroe v.
Rhodes Co., 64 Wash. 2d 431, 392 P.2d 317 (1964).

In Reilly v. Pinkus, supra, the Court pointed out that testing of
professional knowledge was incomplete without exploration of the witness’
knowledge of and attitude toward established treatises in the field. The process
works equally well in reverse and furnishes the basis of the rule.

The rule does not require that the witness rely upon or recognize the
treatise as authoritative, thus avoiding the possibility that the expert may at
the outset block cross-examination by refusing to concede reliance or
authoritativeness. Dabroe v. Rhodes Co., supra. Moreover, the rule avoids the
unreality of admitting evidence for the purpose of impeachment only, with an
instruction to the jury not to consider it otherwise. The parallel to the
treatment of prior inconsistent statements will be apparent. See Rules 613(b)
and 801(d)(1).

Exceptions (19), (20), and (21). Trustworthiness in reputation evidence
is found "when the topic is such that the fact are likely to have been inquired
about and that persons having personal knowledge have disclosed facts which have
thus been discussed in the community; and thus the community’s conclusion, if
any has been formed, is likely to be a trustworthy one." 5 Wigmore § 1580, p.
444, and see also § 1583. On this common foundation, reputation as to land
boundaries, customs, general history, character, and marriage have come to be
regarded as admissible. The breadth of the underlying principle suggests the
formulation of an equally broad exception, but tradition has in fact been much
narrower and more particularized, and this is the pattern of these exceptions to
the rule.

Exception (19) is concerned with matters of personal and family history.
Marriage is universally conceded to be a proper subject of proof by evidence of
reputation in the community. 5 Wigmore § 1602. As to such items as legitimacy,
relationship, adoption, birth, and death, the decisions are divided. Id. § 1605.
All seem to be susceptible to being the subject of well founded repute. The
"world" in which the reputation may exist may be family, associates, or
community. This world has proved capable of expanding with changing times from
the single uncomplicated neighborhood, in which all activities take place, to
the multiple and unrelated worlds of work, religious affiliation, and social
activity, in each of which a reputation may be generated. People v. Reeves, 360
Ill. 55, 195 N. E. 443 (1935); State v. Axilrod, 248 Minn. 204, 79 N. W. 3d 677
(1956); Mass. Stat. 1947, c. 410, M.G.L.A. c. 233 § 21A; 5 Wigmore § 1616. The
family has often served as the point of beginning for allowing community
reputation. 5 Wigmore § 1488. For comparable provisions see Uniform Rule 63(26),
(27)(c); California Evidence Code §§ 1313, 1314; Kansas Code of Civil Procedure
§ 60-460(x), (y)(3); New Jersey Evidence Rule 63(26), (27)(c).

The first portion of Exception (20) is based upon the general admissibility
of evidence of reputation as to the land boundaries and land customs, expanded
in this country to include private as well as public boundaries. McCormick
§ 299, p. 625. The reputation is required to antedate the controversy, though
not to be ancient. The second portion is likewise supported by authority, id.,
and is designed to facilitate proof of events when judicial notice is not
available. The historical character of the subject matter dispenses with any
need that the reputation antedate the controversy with respect to which it is
offered. For similar provisions see Uniform Rule 63(27)(a), (b); California
Evidence Code §§ 1320-1322; Kansas Code of Civil Procedure § 60-460(z); New
Jersey Evidence Rule 63(28).

Exception (21) recognizes the traditional acceptance of reputation evidence
as a means of proving human character. McCormick §§ 44, 158. The exception deals
only with the hearsay aspect of this kind of evidence. Limitations upon
admissibility based on other grounds will be found in Rule 404, relevancy of
character evidence generally, and 608, character of witness. The exception is in
effect a reiteration, in the context of hearsay, of Rule 405(a). Similar
provisions are contained in Uniform Rule 63(28); California Evidence Code §
1324; Kansas Code of Civil Procedure § 60-460(z); New Jersey Evidence Rule
63(28).

Exception (22). When the status of a former judgment is under
consideration in subsequent litigation, three possibilities must be noted: (1)
the former judgment is conclusive under the doctrine of res judicata, either as
a bar or a collateral estoppel; or (2) it is admissible in evidence for what it
is worth; or (3) it may be of no effect at all. The first situation does not
involve any problem of evidence except in the way that principles of substantive
law generally bear upon the relevancy and materiality of evidence. The rule does
not deal with the substantive effect of the judgment as a bar or collateral
estoppel. When, however, the doctrine of res judicata does not apply to make the
judgment either a bar or a collateral estoppel, a choice is presented between
the second and third alternatives. The rule adopts the second for judgments of
criminal conviction of felony grade. This is the direction of the decisions,
Annot., 18 A.L.R. 2d 1287, 1299, which manifest an increasing reluctance to
reject in toto the validity of the law’s factfinding processes outside
the confines of res judicata and collateral estoppel. While this may leave a
jury with the evidence of conviction but without means to evaluate it, as
suggested by Judge Hinton, Note 27 Ill. L. Rev. 195 (1932), it seems safe to
assume that the jury will give it substantial effect unless defendant offers a
satisfactory explanation, a possibility not foreclosed by the provision. But see
North River Ins. Co. v Militello, 104 Colo. 28, 88 P.2d 567 (1939), in which the
jury found for plaintiff on a fire policy despite the introduction of his
conviction for arson. For supporting federal decisions see Clark, J., in New
York & Cuba Mail S.S. Co. v. Continental Ins. Co., 117 F.2d 404, 411 (2d Cir.
1941); Connecticut Fire Ins. Co. v. Ferrara, 277 F.2d 388 (8th Cir. 1960).

Judgments of conviction based upon pleas of nolo contendere are not
included. This position is consistent with the treatment of nolo pleas in
Rule 410 and the authorities cited in the Advisory Committee’s Note in support
thereof.

While these rules do not in general purport to resolve constitutional issues,
they have in general been drafted with a view to avoiding collision with
constitutional principles. Consequently the exception does not include evidence
of the conviction of a third person, offered against the accused in a criminal
prosecution to prove any fact essential to sustain the judgment of conviction. A
contrary position would seem clearly to violate the right of confrontation.
Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L. Ed. 890 (1899), error
to convict of possessing stolen postage stamps with the only evidence of theft
being the record of conviction of the thieves. The situation is to be
distinguished from cases in which conviction of another person is an element of
the crime, e.g. 15 U.S.C. § 902(d), interstate shipment of firearms to a known
convicted felon, and, as specifically provided, from impeachment.

Exception (23). A hearsay exception in this area was originally justified
on the ground that verdicts were evidence of reputation. As trial by jury
graduated from the category of neighborhood inquests, this theory lost its
validity. It was never valid as to chancery decrees. Nevertheless the rule
persisted, though the judges and writers shifted ground and began saying that
the judgment or decree was as good evidence as reputation. See City of London v.
Clerke, Carth. 181, 90 Eng. Rep. 710 (K.B. 1691); Neill v. Duke of Devonshire, 8
App. Cas. 135 (1882). The shift appears to be correct, since the process of
inquiry, sifting, and scrutiny which is relied upon to render reputation
reliable is present in perhaps greater measure in the process of litigation.
While this might suggest a broader area of application, the affinity to
reputation is strong, and paragraph (23) goes no further, not even including
character.

Exception (24). [The original Advisory’s Committee Note and the Reports
of the House and Senate Committees on the Judiciary, as well as the Conference
Report, have been moved below, as the rules found in the original Federal Rules
of Evidence as Rules 803(24) and 804(b)(5) have been consolidated and are now
Rule 807.]

The rule prescribed by the Supreme Court was amended by the Congress in a
number of respects as follows:

Subdivision (a). Paragraphs (1) and (2) were amended by substituting "court"
in place of "judge," and paragraph (5) was amended by inserting "(or in the case
of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or
testimony)."

Subdivision (b). Exception (1) was amended by inserting "the same or" after
"course of," and by substituting the phrase "if the party against whom the
testimony is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination" in place of "at the instance of or
against a party with an opportunity to develop the testimony by direct, cross,
or redirect examination, with motive and interest similar to those of the party
against whom now offered."

Exception (2) as prescribed by the Supreme Court dealing with statements of
recent perception, was deleted by the Congress. ... Exception (2) as enacted by
the Congress is Exception (3) prescribed by the Supreme Court, amended by
inserting at the beginning, "In a prosecution for homicide or in a civil action
or proceeding."

Exception (3) as enacted by the Congress is Exception (4) prescribed by the
Supreme Court, amended in the first sentence by deleting, after "another," the
phrase "or to make him an object of hatred, ridicule, or disgrace," and amended
in the second sentence by substituting, after "unless," the phrase,
"corroborating circumstances clearly indicate the trustworthiness of the
statement," in place of "corroborated."

Exception (4) as enacted by the Congress is Exception (5) prescribed by the
Supreme Court without change.

Exception (5) as enacted by the Congress is Exception (6) prescribed by the
Supreme Court, amended by substituting "equivalent" in place of "comparable" and
by adding all after "trustworthiness."

Advisory Committee’s Note to 1997 Amendment

Subdivision (b)(5). The contents of Rule 803(24) and Rule 804(b)(5) have
been combined and transferred to a new Rule 807. This was done to facilitate
additions to Rules 803 and 804. No change in meaning is intended.

Subdivision (b)(6). Rule 804(b)(6) has been added to provide that a party
forfeits the right to object on hearsay grounds to the admission of a
declarant’s prior statement when the party’s deliberate wrongdoing or
acquiescence therein procured the unavailability of the declarant as a witness.
This recognizes the need for a prophylactic rule to deal with abhorrent behavior
"which strikes at the heart of the system of justice itself." United States v.
Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), on remand, 561 F. Supp. 1114 (E.D.N.Y.),
aff’d. 722 F.2d 13 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984).

As to firsthand knowledge on the part of hearsay declarants, see the
introductory portion of the Advisory Committee’s Note to Rule 803.

Subdivision (a). The definition of unavailability implements the division
of hearsay exceptions into two categories by Rules 803 and 804(b).

At common law the unavailability requirement was evolved in connection with
particular hearsay exceptions rather than along general lines. For example, see
the separate explications of unavailability in relation to former testimony,
declarations against interest, and statements of pedigree, separately developed
in McCormick §§ 234, 257, 297. However, no reason is apparent for making
distinctions as to what satisfies unavailability for the different exceptions.
The treatment in the rule is therefore uniform although differences in the range
or process for witnesses between civil and criminal cases will lead to a less
exacting requirement under item (5). See Rule 45(a) of the Federal Rules of
Civil Procedure and Rule 17(e) of the Federal Rules of Criminal Procedure.

(3) The position that a claimed lack of memory by the witness of the subject
matter of his statement constitutes unavailability likewise finds support in the
cases, though not without dissent. McCormick § 234, p. 494. If the claim is
successful, the practical effect is to put the testimony beyond reach, as in the
other instances. In this instance, however, it will be noted that the lack of
memory must be established by the testimony of the witness himself, which
clearly contemplates his production and subjection to cross-examination.

Report of House Committee on the Judiciary

Rule 804(a)(3) was approved in the form submitted by the Court. However, the
Committee intends no change in existing federal law under which the court may
choose to disbelieve the declarant’s testimony as to his lack of memory. See
United States v. Insana, 423 F.2d 1165, 1169-1170 (2d Cir.), cert. denied, 400
U.S. 841, 91 S.Ct. 83, 27 L. Ed. 2d 76 (1970).

Advisory Committee’s Note

(4) Death and infirmity find general recognition as grounds. McCormick
§§ 234, 257, 297; Uniform Rule 62(7)(c); California Evidence Code § 240(a)(3);
Kansas Code of Civil Procedure § 60-459(g)(3); New Jersey Evidence Rule
62(6)(c). See also the provisions on use of depositions in Rule 32(a)(3) of the
Federal Rules of Civil Procedure and Rule 15(e) of the Federal Rules of Criminal
Procedure.

(5) Absence from the hearing coupled with inability to compel attendance by
process or other reasonable means also satisfies the requirement. McCormick
§ 234; Uniform Rule 62(7)(d) and (e); California Evidence Code § 240(a)(4) and
(5); Kansas Code of Civil Procedure § 60-459(g)(4) and (5); New Jersey Rule
62(6)(b) and (d). See the discussion of procuring attendance of witnesses who
are nonresidents or in custody in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318,
20 L. Ed. 2d 255 (1968).

If the conditions otherwise constituting unavailability result from the
procurement or wrongdoing of the proponent of the statement, the requirement is
not satisfied.

Report of House Committee on the Judiciary

Rule 804(a)(5) as submitted to the Congress provided, as one type of
situation in which a declarant would be deemed "unavailable", that he be "absent
from the hearing and the proponent of his statement has been unable to procure
his attendance by process or other reasonable means." The Committee amended the
Rule to insert after the word "attendance" the parenthetical expression "(or, in
the case of a hearsay exception under subdivision (b)(2), (3), or (4), his
attendance or testimony)". The amendment is designed primarily to require that
an attempt be made to depose a witness (as well as to seek his attendance) as a
precondition to the witness being deemed unavailable. The Committee, however,
recognized the propriety of an exception to this additional requirement when it
is the declarant’s former testimony that is sought to be admitted under
subdivision (b)(1).

Report of Senate Committee on the Judiciary

Subdivision (a) of rule 804 as submitted by the Supreme Court defined the
conditions under which a witness was considered to be unavailable. It was
amended in the House.

The purpose of the amendment, according to the report of the House Committee
on the Judiciary, is "primarily to require that an attempt be made to depose a
witness (as well as to seek his attendance) as a precondition to the witness
being unavailable." [footnote omitted]

Under the House amendment, before a witness is declared unavailable, a party
must try to depose a witness (declarant) with respect to dying declarations,
declarations against interest, and declarations of pedigree. None of these
situations would seem to warrant this needless, impractical and highly
restrictive complication. A good case can be made for eliminating the
unavailability requirement entirely for declarations against interest cases. [A
footnote then states: "Uniform rule 63(10); Kan.Stat.Anno. 60-460(j); 2A
N.J.Stats.Anno. 84-63(10)."]

In dying declaration cases, the declarant will usually, though not
necessarily, be deceased at the time of trial. Pedigree statements which are
admittedly and necessarily based largely on word of mouth are not greatly
fortified by a deposition requirement.

Depositions are expensive and time-consuming. In any event, deposition
procedures are available to those who wish to resort to them. Moreover, the
deposition procedures of the Civil Rules and the Criminal Rules are only
imperfectly adapted to implementing the amendment. No purpose is served unless
the deposition, if taken, may be used in evidence. Under Civil Rule (a)(3) and
Criminal Rule 15(e), a deposition, though taken, may not be admissible, and
under Criminal Rule 15(a) substantial obstacles exist in the way of even taking
a deposition.

For these reasons, the committee deleted the House amendment.

The committee understands that the rule as to unavailability, as explained by
the Advisory Committee "contains no requirement that an attempt be made to take
the deposition of a declarant." In reflecting the committee’s judgment, the
statement is accurate insofar as it goes. Where, however, the proponent of the
statement, with knowledge of the existence of the statement, fails to confront
the declarant with the statement at the taking of the deposition, then the
proponent should not, in fairness, be permitted to treat the declarant as
"unavailable" simply because the declarant was not amenable to process
compelling his attendance at trial. The committee does not consider it necessary
to amend the rule to this effect because such a situation abuses, not conforms
to, the rule. Fairness would preclude a person from introducing a hearsay
statement on a particular issue if the person taking the deposition was aware of
the issue at the time of the deposition but failed to depose the unavailable
witness on that issue.

Conference Report

Subsection (a) defines the term "unavailability as a witness." The House bill
provides in subsection (a)(5) that the party who desires to use the statement
must be unable to procure the declarant’s attendance by process of other
reasonable means. In the case of dying declarations, statements against interest
and statements of personal or family history, the House bill requires that the
proponent must also be unable to procure the declarant’s testimony (such
as by deposition or interrogatories) by process or other reasonable means. The
Senate amendment eliminates the latter provision.

The Conference adopts the provision contained in the House bill.

Advisory Committee’s Note

Subdivision (b). Rule 803, supra, is based upon the assumption that a
hearsay statement falling within one of its exceptions possess qualities which
justify the conclusion that whether the declarant is available or unavailable is
not a relevant factor in determining admissibility. The instant rule proceeds
upon a different theory; hearsay which admittedly is not equal in quality to
testimony of the declarant on the stand may nevertheless be admitted if the
declarant is unavailable and if his statement meets a specified standard. The
rule expresses preferences: testimony given on the stand in person is preferred
over hearsay, and hearsay, if of the specified quality, is preferred over
complete loss of the evidence of the declarant. The exceptions evolved at common
law with respect to declarations of unavailable declarants furnish the basis for
the exceptions enumerated in the proposal. The term "unavailable" is defined in
subdivision (a).

Exception (1). Former testimony does not rely upon some set of
circumstances to substitute for oath and cross-examination, since both oath and
opportunity to cross-examine were present in fact. The only missing one of the
ideal conditions for the giving of testimony is the presence of trier and
opponent ("demeanor evidence"). This is lacking with all hearsay exceptions.
Hence it may be argued that former testimony is the strongest hearsay and should
be included under Rule 803, supra. However, opportunity to observe demeanor is
what in a large measure confers depth and meaning upon oath and
cross-examination. Thus in cases under Rule 803 demeanor lacks the significance
which it possesses with respect to testimony. In any event, the tradition,
founded in experience, uniformly favors production of the witness if he is
available. The exception indicates continuation of the policy. This preference
for the presence of the witness is apparent also in rules and statutes on the
use of depositions, which deal with substantially the same problem.

Under the exception, the testimony may be offered (a) against the party
against whom it was previously offered or (2) against the party by
whom it was previously offered. In each instance the question resolves itself
into whether fairness allows imposing, upon the party against whom now offered,
the handling of the witness on the earlier occasion. (1) If the party against
whom now offered is the one against whom the testimony was offered previously,
no unfairness is apparent in requiring him to accept his own prior conduct of
cross-examination or decision not to cross-examine. Only demeanor has been lost,
and that is inherent in the situation. (2) If the party against whom now offered
is the one by whom the testimony was offered previously, a satisfactory
answer becomes somewhat more difficult. One possibility is to proceed somewhat
along the line of an adoptive admission, i.e. by offering the testimony
proponent in effect adopts it. However, this theory savors of discarded concepts
of witnesses’ belonging to a party, of litigants’ ability to pick and choose
witnesses, and of vouching for one’s own witnesses. Cf. McCormick § 246, pp.
526-527; 4 Wigmore § 1075. A more direct and acceptable approach is simply to
recognize direct and redirect examination of one’s own witness as the equivalent
of cross-examining an opponent’s witness. Falknor, Former Testimony and the
Uniform rules: A Comment, 38 N.Y.U. L. Rev. 651, n. 1 (1963); McCormick § 231,
p. 483. See also 5 Wigmore § 1389. Allowable techniques for dealing with
hostile, double-crossing, forgetful, and mentally deficient witnesses leave no
substance to a claim that one could not adequately develop his own witness at
the former hearing. An even less appealing argument is present when failure to
develop fully was the result of a deliberate choice.

The common law did not limit the admissibility of former testimony to that
given in an earlier trial of the same case, although it did require identity of
issues as a means of insuring that the former handling of the witness was the
equivalent of what would now be done if the opportunity were presented. Modern
decisions reduce the requirement to "substantial" identity. McCormick § 233.
Since identity of issues is significant only in that it bears on motive and
interest in developing fully the testimony of a witness, expressing the matter
in the latter terms is preferable. Id. Testimony given at a preliminary hearing
was held in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L. Ed. 2d 489
(1970), to satisfy confrontation requirements in this respect.

As a further assurance of fairness in thrusting upon a party the prior
handling of the witness, the common law also insisted upon identity of parties,
deviating only to the extent of allowing substitution of successors in a
narrowly construed privity. Mutuality as an aspect of identity is now general
discredited, and the requirement of identity of the offering party disappears
except as it might affect motive to develop the testimony. Falknor, supra, at
652; McCormick § 232, pp. 487-488. The question remains whether strict identity,
or privity, should continue as a requirement with respect to the party against
whom offered. The rule departs to the extent of allowing substitution of one
with the right and opportunity to develop the testimony with similar motive and
interest. This position is supported by modern decisions. McCormick § 232, pp.
489-90; 5 Wigmore § 1388.

Provisions of the same tenor will be found in Uniform Rule 63(3)(b);
California Evidence Code §§ 1290-1292; Kansas Code of Civil Procedure §
60-460(c)(2); New Jersey Evidence Rule 63(3). Unlike the rule, the latter three
provide either that former testimony is not admissible if the right of
confrontation is denied or that it its not admissible if the accused was not a
party to the prior hearing. The genesis of these limitations is a caveat in
Uniform Rule 63(3) Comment that use of former testimony against an accused may
violate his right of confrontation. Mattox v. United States, 156 U.S. 237, 15
S.Ct. 337, 39 L.Ed. 409 (1895), held that the right was not violated by the
Government’s use, on a retrial of the same case, of testimony given at the first
trial by two witnesses since deceased. The decision leaves open the questions
(1) whether direct and redirect are equivalent to cross-examination for purposes
of confrontation, (2) whether testimony given in a different proceeding is
acceptable, and (3) whether the accused must himself have been a party to the
earlier proceeding or whether a similarly situated person will serve the
purpose. Professor Falkner concluded that, if a dying declaration untested by
cross-examination is constitutionally admissible, former testimony tested by the
cross-examination of one similarly situated does not offend against
confrontation. Falknor, supra, at 659-660. The constitutional acceptability of
dying declarations has often been conceded. Mattox v. United States, 156 U.S.
237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Kirby v. United States, 174 U.S.
47, 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Pointer v. Texas, 380 U.S. 400, 407,
85 S.Ct. 1065, 13 L.Ed. 923 (1965).

Report of House Committee on the Judiciary

Rule 804(b)(1) as submitted by the Court allowed prior testimony of an
unavailable witness to be admissible if the party against whom it is offered or
a person "with motive and interest similar" to his had an opportunity to
cross-examine the witness. The Committee considered that it is generally unfair
to impose upon the party against whom the hearsay evidence is being offered
responsibility for the manner in which the witness was previously handled by
another party. The sole exception to this, in the Committee’s view, is when a
party’s predecessor in interest in a civil action or proceeding had an
opportunity and similar motive to examine the witness. The Committee amended the
Rule to reflect these policy determinations.

Advisory Committee’s Note

Exception [2]. The exception is the familiar dying declaration of the
common law, expanded somewhat beyond the traditional narrow limits. While the
original religious justification for the exception may have lost its conviction
for some persons over the years, it can scarcely be doubted that powerful
psychological pressures are present. See 5 Wigmore § 1443 and the classic
statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng.
Rep. 352, 353 (K. B. 1789).

The common law required that the statement be that of the victim, offered in
a prosecution for criminal homicide. Thus declarations by victims in prosecution
for other crimes, e.g. a declaration by a rape victim who dies in childbirth,
and all declarations in civil cases were outside the scope of the exception. An
occasional statute has removed these restrictions, as in Colo. R. S. § 52-1-20,
or has expanded the area of offenses to include abortions, 5 Wigmore § 1432, p.
224, n. 4. Kansas by decision extended the exception to civil cases. Thurston v.
Fritz, 91 Kan. 468, 138 P. 625 (1914). While the common law exception no doubt
originated as a result of the exceptional need for the evidence in homicide
cases, the theory of admissibility applies equally in civil cases and in
prosecutions for crimes other than homicide. The same considerations suggest
abandonment of the limitation to circumstances attending the event in question,
yet when the statement deals with matters other than the supposed death, its
influence is believed to be sufficiently attenuated to justify the limitation.
Unavailability is not limited to death. See subdivision (a) of this rule. Any
problem as to declarations phrased in terms of opinion is laid at rest by Rule
701, and continuation of a requirement of first-hand knowledge is assured by
Rule 602.

Exception [3]. The circumstantial guaranty of reliability for
declarations against interest is the assumption that persons do not make
statements which are damaging to themselves unless satisfied for good reason
that they are true. Hileman v. Northwest Engineering Co., 346 F.2d 668 (6th Cir.
1965). If the statement is that of a party offered by his opponent, it comes in
as an admission, Rule 803(d)(2) [sic], and there is no occasion to inquire
whether it is against interest, this not being a condition precedent to
admissibility of admissions by opponents.

The exception discards the common law limitation and expands to the full
logical limit. One result is to remove doubt as to the admissibility of
declarations tending to establish a tort liability against the declarant or to
extinguish one which might be asserted by him, in accordance with the trend of
the decisions in this country. McCormick, § 254, pp. 548-549. Another is to
allow statements tending to expose declarant to hatred, ridicule, or disgrace,
the motivation here being considered to be as strong as when financial interests
are at stake. McCormick, § 255, p. 551. And finally exposure to criminal
liability satisfies the against-interest requirement. The refusal of the common
law to concede the adequacy of a penal interest was no doubt indefensible in
logic, see the dissent of Mr. Justice Holmes in Donnelly v. United States, 228
U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913), but one senses in the decisions a
distrust of evidence of confessions by third persons offered to exculpate the
accused arising from suspicions of fabrication either of the fact of the making
of the confession or in its contents, enhanced in either instance by the
required unavailability of the declarant. Nevertheless, an increasing amount of
decisional law recognizes exposure to punishment for crime as a sufficient
stake. People v. Spriggs, 60 Cal. 2d 868, 36 Cal. Rptr. 841, 389 P.2d 377
(1964); Sutter v. Easterly, 354 Mo. 282, 189 S. W. 2d 284 (1945); Band’s Refuse
Removal, Inc. v. Fair Lawn Borough, 62 N. J. Super. 522, 163 A. 2d 465 (1960);
Newberry v. Commonwealth, 191 Va. 445, 61 S. E. 2d 318 (1950); Annot., 162 A.L.R.
446. The requirement of corroboration is included in the rule in order to effect
an accommodation between these competing considerations. When the statement is
offered by the accused by way of exculpation, the resulting situation is not
adapted to control by rulings as to the weight of the evidence, and hence the
provision is cast in terms of a requirement preliminary to admissibility. Cf.
Rule 406(a). The requirement of corroboration should be construed in such a
manner as to effectuate its purpose of circumventing fabrication.

Ordinarily the third-party confession is thought of in terms of exculpating
the accused, but this by no means always or necessarily the case: it may include
statement implicating him, and under the general theory of declarations against
interest they would be admissible as related statements. Douglas v. Alabama, 380
U.S. 415, 85 S.Ct. 1074, 13 L. Ed. 2d 934 (1965), and Bruton v. United States,
389 U.S. 818, 88 S.Ct. 126, 19 L. Ed. 2d 70 (1967), both involved confession by
co-defendants which implicated the accused. While the confession was not
actually offered in evidence in Douglas, the procedure followed
effectively put it before the jury, which the Court ruled to be error. Whether
the confession might have been admissible as a declaration against penal
interest was not considered or discussed. Bruton assumed the
inadmissibility, as against the accused, of the implicating confession of his
co-defendant, and centered upon the question of the effectiveness of a limiting
instruction. These decisions, however, by no means require that all statements
implicating another person be excluded from the category of declarations against
interest. Whether a statement is in fact against interest must be determined
from the circumstances of each case. Thus a statement admitting guilt and
implicating another person, made while in custody, may well be motivated by a
desire to curry favor with the authorities and hence fail to qualify as against
interest. See the dissenting opinion of Mr. Justice White in Bruton. On
the other hand, the same words spoken under different circumstances, e.g., to an
acquaintance, would have no difficulty in qualifying. The rule does not purport
to deal with questions of the right of confrontation.

The balancing of self-serving against disserving aspects of a declaration is
discussed in McCormick § 256.

Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in the bill)
provided as follows:

Statement against interest. —A statement which was at the time of its
making so far contrary to the declarant’s pecuniary or proprietary interest
or so far tended to subject him to civil or criminal liability or to render
invalid a claim by him against another or to make him an object of hatred,
ridicule, or disgrace, that a reasonable man in his position would not have
made the statement unless he believed it to be true. A statement tending to
exculpate the accused is not admissible unless corroborated.

The Committee determined to retain the traditional hearsay exception for
statements against pecuniary or proprietary interest. However, it deemed the
Court’s additional references to statements tending to subject a declarant in
civil liability or to render invalid a claim by him against another to be
redundant as included within the scope of the reference to statements against
pecuniary or proprietary interest. See Gichner v. Antonio Triano Tile and Marble
Co., 410 F.2d 238 (D.C. Cir. 1968). Those additional references were accordingly
deleted.

The Court’s rule also proposed to expand the hearsay limitation from its
present federal limitation to include statements subjecting the declarant to
criminal liability and statements tending to make him an object of hatred,
ridicule, or disgrace. The Committee eliminated the latter category from the
subdivision as lacking sufficient guarantees of reliability. See United States
v. Dovico, 380 F.2d 325, 327 nn. 2, 4 (2nd Cir.), cert. denied, 389
U.S. 944 (1967). As for statements against penal interest, the Committee shared
the view of the Court that some such statements do possess adequate assurances
of reliability and should be admissible. It believed, however, as did the Court,
that statements of this type tending to exculpate the accused are more suspect
and so should have their admissibility conditioned upon some further provision
insuring trustworthiness. The proposal in the Court Rule to add a requirement of
simple corroboration was, however, deemed ineffective to accomplish this purpose
since the accused’s own testimony might suffice while not necessarily increasing
the reliability of the hearsay statement. The Committee settled upon the
language "unless corroborating circumstances clearly indicate the
trustworthiness of the statement" as affording a proper standard and degree of
discretion. It was contemplated that the result in such cases as Donnelly v.
United States, 228 U.S. 243 (1912), where the circumstances plainly indicated
reliability, would be changed. The Committee also added to the rule the final
sentence from the 1971 Advisory Committee draft, designed to codify the doctrine
of Bruton v. United States, 391 U.S. 123 (1968). The Committee does not intend
to affect the existing exception to the Bruton principle for this
situation in the Rule, since in that event the declarant would not be
"unavailable".

Report of Senate Committee on the Judiciary

The rule defines those statements which are considered to be against interest
and thus of sufficient trustworthiness to be admissible even though hearsay.
With regard to the type of interest declared against, the version submitted by
the Supreme Court included inter alia, statements tending to subject a declarant
to civil liability or to invalidate a claim by him against another. The House
struck these provision as redundant. In view of the conflicting case law
construing pecuniary or proprietary interests narrowly so as to exclude, e.g.,
tort cases, this deletion could be misconstrued.

Three States which have recently codified their rules of evidence have
followed the Supreme Court’s version of this rule, i.e., that a statement is
against interest if it tends to subject a declarant to civil liability. [A
footnotes states: "Nev.Rev.Stats. § 51.345; N.Mex.Stats. (1973 Supp.) §
20-4-804(4); West’s Wis.Stats.Anno. (1973 Supp.) § 908.045(4)."]

The committee believes that the reference to statements tending to subject a
person to civil liability constitutes a desirable clarification of the scope of
the rule. Therefore, we have reinstated the Supreme Court language on this
matter.

The Court rule also proposed to expand the hearsay limitation from its
present federal limitation to include statements subjecting the declarant to
statements tending to make him an object of hatred, ridicule, or disgrace. The
House eliminated the latter category from the subdivision as lacking sufficient
guarantees of reliability. Although there is considerable support for the
admissibility of such statements (all three of the State rules referred to
supra, would admit such statements), we accept the deletion by the House.

The House amended this exception to add a sentence making inadmissible a
statement or confession offered against the accused in a criminal case, made by
a codefendant or other person implicating both himself and the accused. The
sentence was added to codify the constitutional principle announced in Bruton v.
United States, 391 U.S. 123 (1968). Bruton held that the admission of the
extrajudicial hearsay statement of one codefendant inculpating a second
codefendant violated the confrontation clause of the sixth amendment.

The committee decided to delete this provision because the basic approach of
the rules is to avoid codifying, or attempting to codify, constitutional
evidentiary principles, such as the fifth amendment’s right against
self-incrimination and, here, the sixth amendment’s right of confrontation.
Codification of a constitutional principle is unnecessary and, where the
principle is under development, often unwise. Furthermore, the House provision
does not appear to recognize the exceptions to the Bruton rule, e.g.,
where the codefendant takes the stand and is subject to cross examination; where
the accused confessed, see United States v. Mancusi, 404 F.2d 296 (2d Cir.
1968), cert. denied 397 U.S. 942 (1970); where the accused was placed at the
scene of the crime, see United States v. Zelker, 452 F.2d 1009 (2d Cir. 1971).
For these reasons, the committee decided to delete this provision.

Conference Report

The Senate amendment to subsection (b)(3) provides that a statement is
against interest and not excluded by the hearsay rule when the declarant is
unavailable as a witness, if the statement tends to subject a person to civil or
criminal liability or renders invalid a claim by him against another. The House
bill did not refer specifically to civil liability and to rendering invalid a
claim against another. The Senate amendment also deletes from the House bill the
provision that subsection (b)(3) does not apply to a statement or confession,
made by a co-defendant or another, which implicates the accused and the person
who made the statement, when that statement or confession is offered against the
accused in a criminal case.

The Conference adopts the Senate amendment. The Conferees intend to include
within the purview of this rule, statements subjecting a person to civil
liability and statements rendering claims invalid. The Conferees agree to delete
the provision regarding statements by a co-defendant, thereby reflecting the
general approach in the Rules of Evidence to avoid attempting to codify
constitutional evidentiary principles.

Advisory Committee’s Note

Exception [4]. The general common law requirement that a declaration in
this area must have been made ante litem motam has been dropped, as
bearing more appropriately on weight than admissibility. See 5 Wigmore § 1483.
Item (i) specifically disclaims any need of firsthand knowledge respecting
declarant’s own personal history. In some instances it is self-evident
(marriage) and in others impossible and traditionally not required (date of
birth). Item (ii) deals with declarations concerning the history of another
person. As at common law, declarant is qualified if related by blood or
marriage. 5 Wigmore § 1489. In addition, and contrary to the common law,
declarant qualifies by virtue of intimate association with the family. Id.,
§ 1487. The requirement sometimes encountered that when the subject of the
statement is the relationship between two other persons the declarant must
qualify as to both is omitted. Relationship is reciprocal. Id., § 1491.

Exception (5). In language and purpose, this exception is identical with
Rule 803(24). See the Advisory Committee’s Note to that provision. [The Advisory
Committee’s Note and the Reports of the House and Senate Committees on the
Judiciary concerning Rule 804(b)(5) are found below, since this exception is now
codified as Rule 807.]

On principle it scarcely seems open to doubt that the hearsay rule should not
call for exclusion of a hearsay statement which includes a further hearsay
statement when both conform to the requirements of a hearsay exception. Thus a
hospital record might contain an entry of the patient’s age based on information
furnished by his wife. the hospital record would qualify as a regular entry
except that the person who furnished the information was not acting in the
routine of the business. However, her statement independently qualifies as a
statement of pedigree (if she is unavailable) or as a statement made for
purposes of diagnosis or treatment, and hence each link in the chain falls under
sufficient assurances. Or, further to illustrate, a dying declaration may
incorporate a declaration against interest by another declarant. See McCormick
§ 290, p. 611.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by inserting the phrase "or a statement defined in Rule 801(d)(2), (C),
(D), or (E)."

Advisory Committee’s Note

The declarant of a hearsay statement which is admitted in evidence is in
effect a witness. His credibility should in fairness be subject to impeachment
and support as though he had in fact testified. See Rules 608 and 609. There
are, however, some special aspects of the impeaching of a hearsay declarant
which require consideration. These special aspects center upon impeachment by
inconsistent statement, arise from factual differences which exist between the
use of hearsay and an actual witness and also between various kinds of hearsay,
and involve the question of applying to declarants the general rule disallowing
evidence of an inconsistent statement to impeach a witness unless he is afforded
an opportunity to deny or explain. See Rule 613(b).

The principal difference between using hearsay and an actual witness is that
the inconsistent statement will in the case of the witness almost inevitably of
necessity in the nature of things be a prior statement, which it is
entirely possible and feasible to call to his attention, while in the case of
hearsay the inconsistent statement may well be a subsequent one, which
practically precludes calling it to the attention of the declarant. The result
of insisting upon observation of this impossible requirement in the hearsay
situation is to deny the opponent, already barred from cross-examination, any
benefit if this important technique of impeachment. The writers favor allowing
the subsequent statement. McCormick § 37, p. 69; 3 Wigmore § 1033. The cases,
however, are divided. Cases allowing the impeachment include People v. Collup,
27 Cal. 2d 829 167 P.2d 714 (1946); People v. Rosoto, 58 Cal. 2d 304, 23 Cal.
Rptr. 779, 373 P.2d 867 (1964); Carver v. United States, 164 U.S. 694, 17 S.Ct.
228, 41 L. Ed. 602 (1897). Contra, Mattox v. United States, 156 U.S. 237, 15
S.Ct. 337, 39 L. Ed. 409 (1895); People v. Hines, 284 N.Y. 93, 29 N.E.2d 483
(1940). The force of Mattox, where the hearsay was the former testimony
of a deceased witness and the denial of use of a subsequent inconsistent
statement was upheld, is much diminished by Carver, where the hearsay was
a dying declaration and denial of use of a subsequent inconsistent statement
resulted in reversal. The difference in the particular brand of hearsay seems
unimportant when the inconsistent statement is a subsequent one. True,
the opponent is not totally deprived of cross-examination when the hearsay is
former testimony or a deposition but he is deprived of cross-examining on the
statement of a deposition but he is deprived of cross-examining or along lines
suggest by it. Mr. Justice Shiras, with two justices joining him, dissented
vigorously in Mattox.

When the impeaching statement was made prior to the hearsay statement,
differences in the kinds of hearsay appear which arguably may justify
differences in treatment. If the hearsay consisted of a simple statement by the
witness, e.g., a dying declaration or a declaration against interest, the
feasibility of affording him an opportunity to deny or explain encounters the
same practical impossibility as where the statement is a subsequent one, just
discussed, although here the impossibility arises from the total absence of
anything resembling a hearing at which the matter could be put to him. The
courts by a large majority have ruled in favor of allowing the statement to be
used under these circumstances. McCormick § 37, p. 69; 3 Wigmore § 1033. If,
however, the hearsay consists of former testimony or a deposition, the
possibility of calling the prior statement to the attention of the witness or
deponent is not ruled out, since the opportunity to cross-examine was available.
It must thus be concluded that with former testimony or depositions the
conventional foundation should be insisted upon. Most of the cases involve
depositions, and Wigmore describes them as divided. 3 Wigmore § 1031. Deposition
procedures at best are cumbersome and expensive, and to require the laying of
the foundation may impose an undue burden. Under the federal practice, there is
no way of knowing with certainty at the time of taking a deposition whether it
is merely for discovery or will ultimately end up in evidence. With respects to
both former testimony and depositions the possibility exists that knowledge of
the statement might not be acquired until after the time of the
cross-examination. Moreover, the expanded admissibility of former testimony and
depositions under rule 804(b)(1) calls for a correspondingly expanded approach
to the impeachment. The rule dispenses with the requirement in all hearsay
situations, which is readily administered and best calculated to lead to fair
results.

Notice should taken that Rule 26(f) of the Federal Rules of Civil Procedure,
as originally submitted by the Advisory Committee, ended with the following:

"... and, without having first called them to the deponent’s attention,
may show statements contradictory thereto made at any time by the deponent."

This language did not appear in the rule as promulgated in December, 1937.
See 4 Moore’s Federal Practice ¶¶ 26.01[9], 26.35 (2d ed. 1967). In 1951,
Nebraska adopted a provision strongly resembling the one stricken from the
federal rule:

"Any party may impeach any adverse deponent by self-contradiction without
having laid foundation for such impeachment at the time such deposition was
taken." R. S. Neb. § 25-1267.07.

The provision for cross-examination of a declarant upon his hearsay statement
is a corollary of general principles of cross-examination. A similar provision
is found in California Evidence Code § 1203.

Report of Senate Committee on the Judiciary

Rule 906 [806], as passed by the House and as proposed by the Supreme Court
provides that whenever a hearsay statement is admitted, the credibility of the
declarant of the statement may be attacked, and if attacked may be supported, by
any evidence which would be admissible for those purposes if the declarant had
testified as a witness. Rule 801 defines what is a hearsay statement. While
statements by a person authorized by a party-opponent to make a statement
concerning the subject, by the party-opponent’s agent or by a coconspirator of a
party—see rule 801(d)(2)(c), (d) and (e)—are traditionally defined as exceptions
to the hearsay rule, rule 801 defines such admission by a party-opponent as
statements which are not hearsay. Consequently, rule 806 by referring
exclusively to the admission of hearsay statements, does not appear to allow the
credibility of the declarant to be attacked when the declarant is a
coconspirator, agent or authorized spokesman. The committee is of the view that
such statements should open the declarant to attacks on his credibility. Indeed,
the reason such statements are excluded from the operation of rule 806 is likely
attributable to the drafting technique used to codify the hearsay rule, viz.
some statements, instead of being referred to as exceptions to the hearsay rule,
are defined as statements which are not hearsay. The phrase "or a statement
defined in rule 801(d)(2)(c), (d) and (e)" is added to the rule in order to
subject the declarant of such statements, like the declarant of hearsay
statements, to attacks on his credibility. [A footnote stated: "The committee
considered it unnecessary to include statements contained in rule 801(d)(2(A)
and (B)—the statement by the party-opponent himself or the statement of which he
has manifested his adoption—because the credibility of the party–opponent is
always subject to an attack on his credibility."]

Conference Report

The Senate amendment permits an attack upon the credibility of the declarant
of a statement if the statement is one by a person authorized by party-opponent
to make a statement concerning the subject, one by an agent of a party-opponent,
or one by a co-conspirator of the party-opponent, as these statements are
defined in Rules 801(d)(2)(C), (D) and (E).

The Conference adopts the Senate amendment. The Senate amendment conforms the
rule to present practice.

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and
transferred to a new Rule 807. This was done to facilitate additions to Rules
803 and 804. No change in meaning is intended.

Advisory Committee’ Note [removed from its original place in FRE 803(24)]

The preceding 23 exceptions of Rule 803 and the first [four] exceptions of
Rule 804(b), infra, are designed to take full advantage of the accumulated
wisdom and experience of the past in dealing with hearsay. It would, however, be
presumptuous to assume that all possible desirable exceptions to the hearsay
rule have been catalogued and to pass the hearsay rule to oncoming generations
as a closed system. Exception (24) and its companion provision in rule 804(b)[5]
are accordingly included. They do not contemplate an unfettered exercise of
judicial discretion, but they do provide for treating new and presently
unanticipated situations which demonstrate a trustworthiness within the spirit
of the specifically stated exceptions. Within this framework, room is left for
growth and development of the law of evidence in the hearsay area, consistently
with the broad purposes expressed in Rule 102. See Dallas County v. Commercial
Union Assur. Co., 286 F.2d 388 (5th Cir. 1961).

Report of House Committee on the Judiciary

The proposed Rules of Evidence as submitted to Congress contained identical
provisions in Rules 803 and 804 (which set forth the various hearsay
exceptions), to the effect that the federal courts could admit any hearsay
statement not specifically covered by any of the stated exceptions, if the
hearsay statement was found to have "comparable circumstantial guarantees of
trustworthiness."

The Committee deleted these provisions (proposed Rule 803(24) and
804(b)(6)[later renumbered 804(b)(5)]) as injecting too much uncertainty into
the law of evidence and impairing the ability of practitioners to prepare for
trial. It was noted that Rule 102 directs the courts to construe the Rules of
Evidence so as to promote "growth and development." The Committee believed that
if additional hearsay exceptions are to be created, they should be by amendments
to the Rules, not on a case-by-case basis.

Report of Senate Committee on the Judiciary

The proposed Rules of Evidence submitted to Congress contained identical
provisions in rules 803 and 804 (which set forth the various hearsay
exceptions), admitting any hearsay statement not specifically covered by any of
the stated exceptions, if the hearsay statement was found to have "comparable
circumstantial guarantees of trustworthiness." The House deleted these
provisions (proposed rules 803(24) and 8049b)(6)) as injecting "too much
uncertainty" into the law of evidence and impairing the ability of practitioners
to prepare for trial. The House felt that rule 102, which directs the courts to
construe the Rules of Evidence so as to promote growth and development, would
permit sufficient flexibility to admit hearsay evidence in appropriate cases
under various factual situations that might arise.

We disagree with the total rejection of a residual hearsay exception. While
we view rule 102 as being intended to provide for a broader construction and
interpretation of these rules, we feel that, without a separate residual
provision, the specifically enumerated exceptions could become tortured beyond
any reasonable circumstances which they were intended to include (even if
broadly construed). Moreover, these exceptions, while they reflect the most
typical and well recognized exceptions to the hearsay rule, may not encompass
every situation in which the reliability and appropriateness of a particular
piece of hearsay evidence make clear that it should be heard and considered by
the trier of fact.

The committee believes that there are certain exceptional circumstances where
evidence which is found by a court to have guarantees of trustworthiness
equivalent to or exceeding the guarantees reflected by the presently listed
exceptions, and to have a high degree of probativeness and necessity could
properly be admissible.

The case of Dallas County v. Commercial Union Assur. Co., 286 F.2d 388 (5th
Cir. 1961) illustrates the point. The issue in that case was whether the tower
of the county courthouse collapsed because it was struck by lightning (covered
by insurance) or because of structural weakness and deterioration of the
structure (not covered). Investigation of the structure revealed the presence of
charcoal and charred timbers. In order to show that lightning may not have been
the cause of the charring, the insurer offered a copy of a local newspaper
published over 50 years earlier containing an unsigned article describing a fire
in the courthouse while it was under construction. The Court found that the
newspaper did not qualify for admission as a business record or an ancient
document and did not fit within any other recognized hearsay exception. The
court concluded, however, that the article was trustworthy because it was
inconceivable that a newspaper reporter in a small town would report a fire in
the courthouse if none had occurred. See also United States v. Barbati, 284 F.
Supp. 409 (E.D.N.Y. 1968).

Because exceptional cases like the Dallas County case may arise in the
future, the committee has decided to reinstate a residual exception for rules
803 and 804(b).

The committee, however, also agrees with those supporters of the House
version who felt that an overly broad residual hearsay exception would
emasculate the hearsay rule and the recognized exceptions or vitiate the
rationale behind the codification of the rules.

Therefore, the committee has adopted a residual exception for rules 803 and
804(b) of much narrower scope and applicability than the Supreme Court version.
In order to qualify for admission, a hearsay statement not falling within one of
the recognized exceptions would have to satisfy at least four conditions. First,
it must have "equivalent circumstantial guarantees of trustworthiness." Second,
it must be offered as evidence of a material fact. Third, the court must
determine that the statement "is more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts." This requirement is intended to insure that only statements
which have high probative value and necessity may qualify for admission under
the residual exceptions. Fourth, the court must determine that "the general
purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence."

It is intended that the residual hearsay exceptions will be used very rarely,
and only in exceptional circumstances. The committee does not intend to
establish a broad license for trial judges to admit hearsay statements that do
not fall within one of the other exceptions contained in rules 803 and 804(b).
The residual exceptions are not meant to authorize major judicial revisions of
the hearsay rule, including its present exceptions. Such major revisions are
best accomplished by legislative action. It is intended that in any case in
which evidence is sought to be admitted under these subsections, the trial judge
will exercise no less care, reflection and caution than the courts did under the
common law in establishing the now-recognized exceptions to the hearsay rule.

In order to establish a well-defined jurisprudence, the special facts and
circumstances which, in the court’s judgment, indicates that the statement has a
sufficiently high degree of trustworthiness and necessity to justify its
admission should be stated on the record. It is expected that the court will
give the opposing party a full and adequate opportunity to contest the admission
of any statement sought to be introduced under these subsections.

Conference Report

The Senate amendment adds a new subsection, (24), which makes admissible a
hearsay statement not specifically covered by any of the previous twenty-three
subsections, if the statement has equivalent circumstantial guarantees of
trustworthiness and if the court determines that (A) the statement is offered a
evidence of a material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence the proponent can procure
through reasonable efforts; and (C) the general purposes of these rules and
interests of justice will best be served by admission of the statement into
evidence.

The House bill eliminated a similar, but broader, provision because of the
conviction that such a provision injected too much uncertainty into the law of
evidence regarding hearsay and impaired the ability of a litigant to prepare
adequately for trial.

The conference adopts the Senate amendment with an amendment that provides
that a party intending to request the court to use a statement under this
provision must notify any adverse party of this intention as well as of the
particulars of the statement, including the name and address of the declarant.
This notice must be given sufficiently in advance of the trial or hearing to
provide any adverse party with a fair opportunity to prepare to contest the use
of the statement.

Conference Report [concerning original Rule 804(b)(5), now Rule 807]

The Senate amendment adds a new subsection, (b)(6) [enacted as (b)(5)], which
makes admissible a hearsay statement not specifically covered by any of the five
previous subsections, if the statement has equivalent circumstantial guarantees
of trustworthiness and if the court determines that (A) the statement is offered
as evidence of a material fact; (B) the state is more probative on the point for
which it is offered than any other evidence the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and the interest
of justice will best be served by admission of the statement into evidence.

The House bill eliminated a similar, but broader, provision because of the
conviction that such a provision injected too much uncertainty into the law of
evidence regarding hearsay and impaired the ability of a litigant to prepare
adequately for trial.

The Conference adopts the Senate amendment with an amendment that renumbers
this subsection and provides that a party intending to request the court to use
a statement under this provision must notify any adverse party of this intention
as well as of the particulars of the statement, including the name and address
of the declarant. This notice must be given sufficiently in advance of the trial
or hearing to provide any adverse party with a fair opportunity to prepare to
contest the use of the statement.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended in subdivision (b)(10) by substituting "prescribed" in place of
"adopted," and by adding "pursuant to statutory authority."

Advisory Committee’s Note

Subdivision (a). Authentication and identification represent a special
aspect of relevancy. Michael and Adler, Real Proof, 5 Vand L. Rev. 344, 362
(1952); McCormick §§ 179, 185; Morgan, Basic Problems of Evidence 378 (1962).
Thus a telephone conversation may be irrelevant because on an unrelated topic or
because the speaker was not identified. The latter aspect is the one here
involved. Wigmore describes the need for authentication as "an inherent logical
necessity." 7 Wigmore § 2129, p. 564.

This requirement of showing authenticity or identity falls in the category of
relevancy dependent upon fulfillment of a condition of act and is governed by
the procedure set forth in Rule 104(b).

The common law approach to authentication of documents has been criticized as
an "attitude of agnosticism," McCormick, Cases on Evidence 388, n. 4 (3rd ed.
1956), as one which "departs sharply from one’s customs in ordinary affairs,"
and as presenting only a slight obstacle to the introduction of forgeries in
comparison to the time and expense devoted to proving genuine writings which
correctly shown their origin on their face, McCormick § 185, pp. 395, 396.
Today, such available procedures as requests to admit and pretrial conference
afford the means of eliminating much of the need for authentication or
identification. Also, significant inroads upon the traditional insistence on
authentication and identification have been made by accepting at least prima
facie genuine items of the kind treated in Rule 902, infra. However, the need
for suitable methods of proof still remains, since criminal cases pose their own
obstacles to the use of preliminary procedures, unforeseen contingencies may
arise, and cases of genuine controversy still occur.

Subdivision (b). The treatment of authentication and identification draws
largely upon the experience embodied in the common law and in statutes to
furnish illustrative applications of the general principle set forth in
subdivision (a). The examples are not intended as an exclusive enumeration of
allowable methods but are meant to guide and suggest, leaving room for growth
and development in this area of the law.

The examples relate for the most part to documents, with some attention given
to voice communications and computer print-outs. As Wigmore noted, no special
rules have been developed for authenticating chattels. Wigmore, Code of Evidence
§ 2086 (3rd ed. 1942).

It should be observed that compliance with requirements of authentication or
identification by no means assures admission of an item into evidence, as other
bars, hearsay for example, may remain.

Example (1) contemplates a broad spectrum ranging from testimony of a
witness who was present at the signing of a document to testimony establishing
narcotics as taken from an accused and accounting for custody through the period
until trial, including laboratory analysis. See California Evidence Code § 1413,
eyewitness to signing.

Example (2) states conventional doctrine as to lay identification of
handwriting, which recognizes that a sufficient familiarity with the handwriting
of another person may be acquired by seeing him write, by exchanging
correspondence, or by other means, to afford a basis for identifying it on
subsequent occasions. McCormick § 189. See also California Evidence Code § 1416.
Testimony based upon familiarity acquired for purposes of the litigation is
reserved to the expert under the example with follows.

Example (3). The history of common law restrictions upon the technique of
proving or disproving the genuineness of a disputed specimen of handwriting
through comparison with a genuine specimen, by either the testimony of expert
witnesses or direct viewing by the triers themselves, is detailed in 7 Wigmore
§§ 1991-1994. In breaking away, the English Common Law Procedure Act of 1854, 17
and 18 Vict., c. 125, § 27, cautiously allowed expert or trier to use exemplars
"proved to the satisfaction of the judge to be genuine" for the purposes of
comparison. The language found its way into numerous statutes in this country,
e.g., California Evidence Code §§ 1417, 1418. While explainable as a measure of
prudence in the process of breaking with precedent in the handwriting situation,
the reservation to the judge of the question of the genuineness of exemplars and
the imposition of an unusually high standard of persuasion are at variance with
the general treatment of relevancy which depends upon fulfillment of a condition
of fact. Rule 104(b). No similar attitude is found in other comparison
situations, e.g., ballistics comparison by jury, as in Evans v. Commonwealth,
230 Ky. 411, 19 S. W. 2d 1091 (1929), or by experts, Annot., 26 A.L.R. 2d 892,
and no reason appears for its continued existence in handwriting cases.
Consequently Example (3) sets no higher standard for handwriting specimens and
treats all comparison situations alike, to be governed by Rule 104(b). This
approach is consistent with 28 U.S.C. § 1731: "The admitted or proved
handwriting of any person shall be admissible, for purposes of comparison, to
determine genuineness of other handwriting attributed to such person."

Example (5). Since aural voice identification is not a subject of expert
testimony, the requisite familiarity may be acquired either before or after the
particular speaking which is the subject of the identification, in this respect
resembling visual identification of a person rather than identification of
handwriting. Cf. Example (2), supra, People v. Nichols, 378 Ill. 487, 38
N.E.2d 766 (1941); McGuire v. State, 200 Md. 601, 92 A.2d 582 (1952); State v.
McGee, 336 Mo. 1082, 82 S.W.2d 98 (1935).

Example (6). The cases are in agreement that a mere assertion of his
identity by a person talking on the telephone is not sufficient evidence of the
authenticity of the conversation and that additional evidence of his identity is
required. The additional evidence need not fall in any set pattern. Thus the
content of his statements or the reply technique, under Example (4), supra, or
voice identification under Example (5), may furnish the necessary foundation.
Outgoing calls made by the witness involve additional factors bearing upon
authenticity. The calling of a number assigned by the telephone company
reasonably supports the assumption that the listing is correct and that the
number is the one reached. If the number is that of a place of business, the
mass of authority allows an ensuing conversation if it relates to business
reasonably transacted over the telephone, on the theory that the maintenance of
the telephone connection is an invitation to do business without further
identification. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557 (1942); City
of Pawhuska v. Crutchfield, 147 Okla. 4, 293 P. 1095 (1930); Zurich General Acc.
& Liability Ins. Co. v. Baum, 159 Va. 404, 165 S.E. 518 (1932). Otherwise, some
additional circumstance of identification of the speaker is required. The
authorities divide on the question whether the self-identifying statement of the
person answering suffices. Example (6) answers in the affirmative on the
assumption that usual conduct respecting telephone calls furnish adequate
assurances of regularity, bearing in mind that the entire matter is open to
exploration before the trier of fact. In general, see McCormick § 193; 7 Wigmore
§ 2155; Annot., 71 A.L.R. 5, 105 id. 326.

Example (7). Public records are regularly authenticated by proof of
custody, without more. McCormick § 191; 7 Wigmore §§ 2158, 2159. The example
extends the principle to include data stored in computers and similar methods,
of which increasing use in the public records area may be expected. See
California Evidence Code §§ 1532, 1600.

Example (8). The familiar ancient document rule of the common law is
extended to include data stored electronically or by other similar means. Since
the importance of appearance diminishes in this situation, the important of
custody or place where found increases correspondingly. This expansion is
necessary in view of the widespread use of methods of storing data in forms
other than conventional written records.

Any time period selected is bound to be arbitrary. The common law period of
30 years is here reduced to 20 years, with some shift of emphasis from the
probable unavailability of witnesses to the unlikeliness of a still viable fraud
after the lapse of time. The shorter period is specified in the English Evidence
Act of 1938, 1 & 2 Geo. 6, c. 28, and in Oregon R. S. 1963, § 43.360(34). See
also the numerous statutes prescribing periods of less than 30 years in the case
of recorded documents. 7 Wigmore § 2143.

The application of Example (8) is not subject to any limitation to title
documents or to any requirement that possession, in the case of a title
document, has been consistent with the document. See McCormick § 190.

Example (9) is designed for situations in which the accuracy of a result
is dependent upon a process or system which produces it. X rays afford a
familiar instance. Among more recent developments is the computer, as to which
see Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State
v. Veres, 7 Ariz. App. 117, 436 P.2d 629 (1968); Merrick v. United States Rubber
Co., 7 Ariz. App. 433, 440 P.2d 314 (1968); Freed, Computer Print-Outs as
Evidence, 16 Am. Jur. Proof of Facts 273; Symposium, Law and Computers in the
Mid-Sixties, ALI-ABA (1966); 37 Albany L. Rev. 61 (1967). Example (9) does not,
of course, foreclose taking judicial notice of the accuracy of the process or
system.

Example (10). The example makes clear that methods of authentication
provided by Act of Congress and by the Rules of Civil and Criminal Procedure or
by Bankruptcy Rules are not intended to be superseded. Illustrative are the
provisions for authentication of official records in Civil Procedure rule 44 and
Criminal Procedure Rule 27, for authentication of records of proceedings by
court reporters in 28 U.S.C. § 753(b) and Civil Procedure Rule 80(c), and for
authentication of depositions in Civil Procedure Rule 30(f).

The amendment adds two new paragraphs to the rule on self-authentication. It
sets forth a procedure by which parties can authenticate certain records of
regularly conducted activity, other than through the testimony of a foundation
witness. See the amendment to Rule 803(6). 18 U.S.C. §§ 3505 currently provides
a means for certifying foreign records of regularly conducted activity in
criminal cases, and this amendment is intended to establish a similar procedure
for domestic records, and for foreign records offered in civil cases.

A declaration that satisfies 28 U.S.C. §§ 1746 would satisfy the declaration
requirement of Rule 902(11), as would any comparable certification under oath.

The notice requirement in Rules 902(11) and (12) is intended to give the
opponent of the evidence a full opportunity to test the adequacy of the
foundation set forth in the declaration.

Advisory Committee’s Note

Case law and statutes have, over the years, developed a substantial body of
instances in which authenticity is taken as sufficiently established for
purposes of admissibility without extrinsic evidence to that effect, sometimes
for reasons of policy but perhaps more often because practical considerations
reduce the possibility of unauthenticity to a very small dimension. The present
rule collects and incorporates these situations, in some instances expanding
them to occupy a larger area which their underlying considerations justify. In
no instance is the opposite party foreclosed from disputing authenticity.

Paragraph (1). The acceptance of documents bearing a public seal and
signature, most often encountered in practice in the form of acknowledgments or
certificates authenticating copies of public records, is actually a broad
application. Whether theoretically based in whole or in part upon judicial
notice, the practical underlying considerations are that forgery is a crime and
detection is fairly easy and certain. 7 Wigmore § 2161, p. 638; California
Evidence Code § 1452. More than 50 provisions for judicial notice of official
seals are contained in the United States Code.

Paragraph (2). While statutes are found which raise a presumption of
genuineness of purported official signatures in the absence of an official seal,
7 Wigmore § 2167; California Evidence Code § 1453, the greater ease of effecting
a forgery under these circumstances is apparent. Hence this paragraph of the
rule calls for authentication by an officer who has a seal. Notarial acts by
members of the armed forces and other special situations are covered in
paragraph (10).

Paragraph (3) provides a method for extending the presumption of
authenticity to foreign official documents by a procedure of official
certification. It is derived form Rule 44(a)(2) of the Rules of Civil Procedure
but is broader in applying to public documents rather than being limited to
public records.

Paragraph (4). The common law and innumerable statutes have recognized
the procedure of authenticating copies of public records by certificate. The
certificate qualifies as a public document, receivable as authentic when in
conformity with paragraph (1), (2), or (3). Rule 44(a) of the Rules of Civil
Procedure and Rule 27 of the Rules of Criminal Procedure have provided
authentication procedures of this nature for both domestic and foreign public
records. It will be observed that the certification procedure here provided
extends only to public records, reports, and recorded documents, all including
data compilations, and does not apply to public documents generally. Hence
documents provable when presented in original form under paragraphs (1), (2), or
(3) may not be provable by certified copy under paragraph (4).

Paragraph (5). Dispensing with preliminary proof of the genuineness of
purportedly official publications, most commonly encountered in connection with
statutes, court reports, rules, and regulations, has been greatly enlarged by
statutes and decisions. 5 Wigmore § 1684. Paragraph (5), it will be noted, does
not confer admissibility of all official publications; it merely provides a
means whereby their authenticity may be taken as established for purposes of
admissibility. Rule 44(a) of the Rules of Civil Procedure has been to the same
effect.

Paragraph (6). The likelihood of forgery of newspapers or periodicals is
slight indeed. Hence no danger is apparent in receiving them. Establishing the
authenticity of the publication may, of course, leave still open questions of
authority and responsibility for the items therein contained. See 7 Wigmore
§ 2150. Cf. 39 U.S.C. § 4005(b), public advertisement prima facie evidence of
agency of person named, in postal fraud order proceeding; Canadian Uniform
Evidence Act, Draft of 1936, printed copy of newspaper prima facie evidence that
notices or advertisements were authorized.

Paragraph (8). In virtually every state, acknowledged title documents are
receivable in evidence without further proof. Statutes are collected in 5
Wigmore § 1676. If this authentication suffices for documents for documents of
the importance of those affecting titles, logic scarcely permits denying this
method when other kinds of documents are involved. Instances of broadly
inclusive statutes are California Evidence Code § 1451 and N.Y. CPLR 4538,
McKinney’s Consol. Laws 1963.

Paragraph (9). Issues of the authenticity of commercial paper in federal
courts will usually arise in diversity cases, will involved an element of a
cause of action or defense, and with respect to presumptions and burden of proof
will be controlled by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,
82 L. Ed. 1188 (1938). Rule 302, supra. There may, however, be questions of
authenticity involving lesser segments of a case or the case may be one governed
by federal common law. Clearfield Trust Co. v. United States 318 U.S. 363, 63
S.Ct. 573, 87 L. Ed. 838 (1943). Cf. United States v. Yazell, 382 U.S. 341, 86
S.Ct. 500, 15 L. Ed. 2d 404 (1966). In these situations, resort to the useful
authentication provision of the Uniform Commercial Code is provided for. While
the phrasing is in terms of "general commercial law," in order to avoid the
potential complications inherent in borrowing local statutes, today one would
have difficulty in determining the general commercial law without referring to
the Code. See Williams v. Walker-Thomas Furniture Co., 121 U.S. App. D.C. 315,
350 F.2d 445 91965). Pertinent Code provisions are sections 1-202, 3-307, and
3-510, dealing with third-party documents, signatures on negotiable instruments,
protests, and statements of dishonor.

Report of House Committee on the Judiciary

The Committee approved Rule 902(9) as submitted by the Court. With respect to
the meaning of the phrase "general commercial law," the Committee intends that
the Uniform Commercial Code, which has been adopted in virtually every State,
will be followed generally, but that federal commercial law will apply where
federal commercial paper is involved. See Clearfield Trust Co. v. Untied States,
318 U.S. 363, 63 S.Ct. 573, 87 L. Ed. 838 (1943). Further, in those instances in
which the issues are governed by Erie R. Co. v. Tompkins, 304 U.S. 64 58 S.Ct.
817, 82 L. Ed. 1188 (1938), State law will apply irrespective of whether it is
the Uniform Commercial Code.

The common law required that attesting witnesses be produced or accounted
for. Today the requirement has generally been abolished except with respect to
documents which must be attested to be valid, e.g., wills in some states.
McCormick § 188. Uniform Rule 71; California Evidence Code § 1411; Kansas Code
of Civil Procedure § 60-468; New Jersey Evidence Rule 71; New York CPLR Rule
4537.

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended in paragraph (2) by inserting "video tapes."

Advisory Committee’s Note

In an earlier day, when discovery and other related procedures were strictly
limited, the misleading names "best evidence rule" afforded substantial
guarantees against inaccuracies and fraud by its insistence upon production of
original documents. The great enlargement of the scope of discovery and related
procedures in recent times has measurably reduced the need for the rule.
Nevertheless important areas of usefulness persist: discovery of documents
outside the jurisdiction may require substantial outlay of time and money; the
unanticipated document may not practicably be discoverable; criminal cases have
built-in limitations on discovery. Clearly and Strong, The Best Evidence Rule:
An Evaluation in Context, 51 Iowa L. Rev. 825 (1966).

Paragraph (1). Traditionally the rule requiring the original centered
upon accumulations of data and expressions affecting legal relations set forth
in words and figures. This meant that the rule was one essentially related to
writings. Present day techniques have expanded methods of storing data, yet the
essential form which the information ultimately assumes for usable purposes is
words and figures. Hence the considerations underlying the rule dictate its
expansion to include computers, photographic systems, and other modern
developments.

Report of House Committee on the Judiciary

[Paragraph (2).] The Committee amended this Rule expressly to include
"video tapes" in the definition of "photographs."

Advisory Committee’s Note

Paragraph (3). In most instances, what is an original will be
self-evident and further refinement will be unnecessary. However, in some
instances particularized definition is required. A carbon copy of a contract
executed in duplicate becomes an original, as does a sales ticket carbon copy
given to a customer. While strictly speaking the original of a photograph might
be thought to be only the negative, practicality and common usage require that
any print from the negative be regarded as an original. Similarly, practicality
and usage confer the status of original upon any computer printout. Transport
Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965).

Paragraph (4). The definition describes "copies" produced by methods
possessing an accuracy which virtually eliminates the possibility of error.
Copies thus produced are given the status of originals in large measure by Rule
1003, infra. Copies subsequently produced manually, whether handwritten or
typed, are not within the definition. It should be noted that what is an
original for some purposes may be a duplicate for others. Thus a bank’s
microfilm record of checks cleared is the original as a record. However, a print
offered as a copy of a check whose contents are in controversy is a duplicate.
This result is substantially consistent with 28 U.S.C. § 1732(b). Compare 26
U.S.C. § 7513(c), giving full status as originals to photographic reproductions
of tax returns and other documents, made authority of the Secretary of the
Treasury, and 44 U.S.C. § 399(a), giving original status to photographic copies
in the National Archives.

The rule is the family one requiring production of the original of a document
to prove its contents, expanded to include writings, recordings, and
photographs, as defined in Rule 1001(1) and (2), supra.

Application of the rule requires a resolution of the question whether
contents are sought to be proved. Thus an event may be proved by non-documentary
evidence, even though a written record of it was made. If, however, the event is
sought to be proved by the written record, the rule applies. For example,
payment may be proved without producing the written receipt which was given.
Earnings may be proved without producing books of account in which they are
entered. McCormick § 198; 4 Wigmore § 1245. Nor does the rule apply to testimony
that books or records have been examined and found not to contain any reference
to a designated matter.

The assumption should not be made that the rule will come into operation on
every occasion when use is made of a photograph in evidence. On the contrary,
the rule will seldom apply to ordinary photographs. In most instances a party
wishes to introduce the item and the question raised is the propriety of
receiving it into evidence. Cases in which an offer is made of the testimony of
a witness as to what he saw in a photograph or motion picture, without producing
the same, are most unusual. The usual course is for a witness on the stand to
identify the photograph or motion picture as a correct representation of events
which he saw or of a scene with which he is familiar. In fact he adopts the
picture as his testimony, or, in common parlance, uses the picture to illustrate
his testimony. Under these circumstances, no effort is made to prove the
contents of the picture, and the rule is inapplicable. Paradis, The Celluloid
Witness, 37 U. Colo. L. Rev. 235, 249-251 (1965).

It should be noted, however, that Rule 703, supra, allows an expert to give
an opinion based on matters not in evidence, and the present rule must be read
as being limited accordingly in its application. Hospital records which may be
admitted as business records under Rule 803(6) commonly contain reports
interpreting X rays by the staff radiologist, who qualifies as an expert, and
these reports need not be excluded from the records by the instant rule.

The reference to Acts of Congress is made in view of such statutory
provisions as 26 U.S.C. § 7513, photographic reproductions of tax returns and
documents, made by authority of the Secretary of the Treasury, treated as
originals, and 44 U.S.C. § 399(a), photographic copies in National Archives
treated as originals.

When the only concern is with getting the words or other contents before the
court with accuracy and precision, then a counterpart serves equally as well as
the original, if the counterpart is the product of a method which insures
accuracy and genuineness. By definition in Rule 1001(4), supra, a "duplicate"
possesses this character.

Therefore, if no genuine issue exists as to authenticity and no other reason
exists for requiring the original, a duplicate is admissible under the rule.
This position finds support in the decisions, Myrick v. United States, 332 F.2d
279 (5th Cir. 1963), no error in admitting photostatic copies of checks instead
of original microfilm in absence of suggestion to trial judge that photostats
were incorrect; Johns v. United States, 323 F.2d 421 (5th Cir. 1963), not error
to admit concededly accurate tape recording made from original wire recording;
Auget v. Johnston, 315 F.2d 816 (9th Cir. 1963), not error to admit copy of
agreement when opponent had original and did not on appeal claim any
discrepancy. Other reasons for requiring the original may be present when only a
part of the original is reproduced and the remainder is needed for
cross-examination or may disclose matters qualifying the part offered or
otherwise useful to the opposing party. United States v. Alexander, 326 F.2d 736
(4th Cir. 1964). And see Toho Bussan Kaisha, Ltd. v. American President Lines,
Ltd., 265 F.2d 418, 76 A.L.R. 2d 1344 (2d Cir. 1959).

Report of House Committee on the Judiciary

The Committee approved this Rule in the form submitted by the Court, with the
expectation that the courts would be liberal in deciding that a "genuine
question is raised as to the authenticity of the original."

Basically the rule requiring the production of the original as proof of
contents has developed as a rule of preference; if failure to produce the
original is satisfactorily explained, secondary evidence is admissible. The
instant rule specifies the circumstances under which production of the original
is excused.

The rule recognizes no "degrees" of secondary evidence. While strict logic
might call for extending the principle of preference beyond simply preferring
the original, the formulation of a hierarchy of preferences and a procedure for
making it effective is believed to involve unwarranted complexities. Most, if
not all, that would be accomplished by an extended scheme of preferences will,
in any event, be achieved through the normal motivation of a party to present
the most convincing evidence possible and the arguments and procedures available
to his opponent if he does not. Compare McCormick § 207.

Paragraph (1). Loss or destruction of the original, unless due to bad
faith of the proponent, is a satisfactory explanation of non-production.
McCormick § 201.

Report of the House Committee on the Judiciary

The Committee approved Rule 1004(1) in the form submitted to Congress.
However, the committee intends that loss or destruction of an original by
another person at the instigation of the proponent should be considered as
tantamount to loss or destruction in bad faith by the proponent himself.

Advisory Committee’s Note

Paragraph (2). When the original is in the possession of a third person,
inability to procure it from him by resort to process or other judicial
procedure is a sufficient explanation of non-production. Judicial procedure
includes subpoena duces tecum as an incident to the taking of a deposition in
another jurisdiction. No further showing is required. See McCormick § 202.

Paragraph (3). A party who has an original in his control has no need for
the protection of the rule if put on notice that proof of contents will be made.
He can ward off secondary evidence by offering the original. The notice
procedure here provided is not to be confused with orders to produce or other
discovery procedures, as the purpose of the procedure under this rule is to
afford the opposite party an opportunity to produce the original, not to compel
him to do so. McCormick § 203.

Paragraph (4). While difficult to define with precision, situations arise
in which no good purpose is served by production of the original. Examples are
the newspaper in an action for the price of publishing defendant’s
advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151
Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming
status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E.
1087 (1903). Numerous cases are collected in McCormick § 200, p. 412. n. 1.

Public records call for somewhat different treatment. Removing them from
their usual place of keeping would be attended by serious inconvenience to the
public and to the custodian. As a consequence judicial decisions and statutes
commonly hold that no explanation need be given for failure to produce the
original of a public record. McCormick § 204; 4 Wigmore §§ 1215-1228. This
blanket dispensation from producing or accounting for the original would open
the door to the introduction of every kind of secondary evidence of contents of
public records were it not for the preference given certified or compared
copies. Recognition of degrees of secondary evidence in this situation is an
appropriate quid pro quo for not applying the requirement of producing
the original.

The provisions of 29 U.S.C. § 1733(b) apply only to departments or agencies
of the United States. The rule, however, applies to public records generally and
is comparable in scope in this respect to Rule 44(a) of the Rules of Civil
Procedure.

The admission of summaries of voluminous books, records, or documents offers
the only practicable means of making their contents available to judge and jury.
The rule recognizes this practice, with appropriate safeguards. 4 Wigmore §
1230.

While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579
(Exch. 1840), allows proof of contents by evidence of an oral admission by the
party against whom offered, without accounting for non-production of the
original, the risk of inaccuracy is substantial and the decision is at odds with
the purpose of the rule giving preference to the original. See 4 Wigmore § 1255.
The instant rule follows Professor McCormick’s suggestion of limiting this use
of admission to those made in the course of giving testimony or in writing.
McCormick § 208, p. 424. The limitation, of course, does not call for excluding
evidence of an oral admission when non-production of the original has been
accounted for and secondary evidence generally has become admissible. Rule 1004,
supra.

A similar provision is contained in New Jersey Evidence Rule 70(1)(h).

The rule enacted by the Congress is the rule prescribed by the Supreme Court,
amended by substituting "court" in place of "judge," and by adding at the end of
the first sentence the phrase "in accordance with the provisions of rule 104."

Advisory Committee’s Note

Most preliminary questions of fact in connection with applying the rule
preferring the original as evidence of contents are for the judge, under the
general principles announced in Rule 104, supra. Thus, the question whether the
loss of the originals has been established, or of the fulfillment of other
conditions specified in rule 1004, supra, is for the judge. However, questions
may arise which go beyond the mere administration of the rule preferring the
original and into the merits of the controversy. For example, plaintiff offers
secondary evidence of the contents of an alleged contract, after first
introducing evidence of loss of the original, and defendant counters with
evidence that no such contract was ever executed. If the judge decides that the
contract was never executed and excludes the secondary evidence, the case is at
an end without ever going to the jury on a central issue. Levin, Authentication
and Content of Writings, 10 Rutgers L. Rev. 632, 644 (1956). The latter portion
of the instant rule is designed to insure treatment of these situations as
raising jury questions. The decision is not one for uncontrolled discretion of
the jury but is subject to the control exercised generally by the judge over
jury determinations. See Rule 104(b), supra.

This revision is made to conform the rule to changes in terminology made by
Rule 58 of the Federal Rules of Criminal Procedure and to the changes in the
title of United States magistrates made by the Judicial Improvements Act of
1990.

Advisory Committee’s Note to 1987 Amendment

Subdivision (a) is amended to delete the reference to the District Court for
the District of the Canal Zone, which no longer exists, and to add the District
Court for the Northern Mariana Islands. The United States bankruptcy judges are
added to conform the subdivision with rule 1101(b) and Bankruptcy Rule 9017.

Advisory Committee’s Note

Subdivision (a). [This note concerned the Supreme Court’s authority to
prescribe rules pursuant to the enabling acts, which was made moot by Congress’s
enactment of the Federal Rules of Evidence.]

Report of House Committee on the Judiciary

Subdivision (a) as submitted to the Congress, in stating the courts and
judges to which the Rules of Evidence apply, omitted the Court of Claims and
commissioners of that Court. At the request of the Court of Claims, the
Committee amended the Rule to include the Court and its commissioners within the
purview of the Rules.

Advisory Committee’s Note

Subdivision (b) is a combination of the language of the enabling acts,
supra, with respect to the kinds of proceedings in which the making of rules is
authorized. It is subject to the qualifications expressed in the subdivisions
which follow.

Subdivision (c) singling out the rules of privilege for special
treatment, is made necessary by the limited applicability of the remaining
rules.

Subdivision (d). The rule is not intended as an expression as to when due
process or other constitutional provisions may require an evidentiary hearing.
Paragraph (1) restates, for convenience, the provisions of the second sentence
of Rule 104(a), supra. See Advisory Committee’s Note to that rule.

(2) While some states have statutory requirements that indictments be based
on "legal evidence," and there is some case law to the effect that the rules of
evidence apply to grand jury proceedings, 1 Wigmore § 4(5), the Supreme Court
has not accepted this view. In Costello v. United States, 350 U.S. 359, 76 S.Ct.
406, 100 L. Ed. 397 (1956), the Court refused to allow an indictment to be
attacked, for either constitutional or policy reasons, on the ground that only
hearsay evidence was presented.

"It would run counter to the whole history of the grand jury institution,
in which laymen conduct their inquiries unfettered by technical rules.
Neither justice nor the concept of a fair trial requires such a change." Id.
at 364.

The rule as drafted does not deal with the evidence required to support an
indictment.

(3) The rule exempts preliminary examinations in criminal cases. Authority as
to the applicability of the rules of evidence to preliminary examinations has
been meagre and conflicting. Goldstein, The State and the Accused: Balance of
Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1168, n. 53 (1960);
Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. of
Pa. L. Rev. 589, 592-593 (1958). Hearsay testimony is, however, customarily
received in such examinations. Thus in a Dyer Act case, for example, an
affidavit may properly be used in a preliminary examination to prove ownership
of the stolen vehicle, thus saving the victim of the crime the hardship of
having to travel twice to a distant district for the sole purpose of testifying
as to ownership. It is believed that the extent of the applicability of the
Rules of Evidence to preliminary examinations should be appropriately dealt with
by the Federal Rules of Criminal Procedure which regulate those proceedings.

Extradition and rendition proceedings are governed in detail by statute. 8
U.S.C. §§ 3181-3195. They are essentially administrative in character.
Traditionally the rules of evidence have not applied. 1 Wigmore § 496).
Extradition proceedings are accepted from the operation of the Rules of Criminal
Procedure. Rule 54(b)(5) of the Federal Rules of Criminal Procedure.

The rules of evidence have not been regarded as applicable to sentencing or
probation proceedings, where great reliance is placed upon the pre-sentence
investigation and report. Rule 32(c) of the Federal Rules of Criminal Procedure
requires a pre-sentence investigation and report in every case unless the court
otherwise directs. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.
Ed. 1337 (1949), in which the judge overruled a jury recommendation of life
imprisonment and imposed a death sentence, the Court said that due process does
not require confrontation or cross-examination in sentencing or passing on
probation, and that the judge has broad discretion as to the sources and types
of information relied upon. Compare the recommendation that the substance of all
derogatory information be disclosed to the defendant, in A.B.A. Project on
Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures
§ 4.4, Tentative Draft (1967, Sobeloff, Chm.). Williams was adhered to in Specht
v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed. 2d 326 (1967), but not to
be extended to a proceeding under the Colorado Sex Offenders Act, which was said
to be a new charge leading in effect to punishment, more like the recidivist
statutes were opportunity must be given to be heard on the habitual criminal
issue.

Warrants for arrest, criminal summonses, and search warrants are issued upon
complaint or affidavit showing probable cause. Rules 4(a) and 41(c) of the
Federal Rules of Criminal Procedure. The nature of the proceedings makes
application of the formal rules of evidence inappropriate and impracticable.

Criminal contempts are punishable summarily if the judge certifies that he
saw or heard the contempt and that it was committed in the presence of the
court. Rule 42(a) of the Federal Rules of Criminal Procedure. The circumstances
which preclude application of the rules of evidence in this situation are not
present, however, in other cases of criminal contempt.

Proceedings with respect to release on bail or otherwise do not call for
application of the rules of evidence. The governing statute specifically
provides:

"Information stated in, or offered in connection with, any order entered
pursuant to this section need not conform to the rules pertaining to the
admissibility of evidence in a court of law." 18 U.S.C.A. § 3146(f).

This provision is consistent with the type of inquiry contemplated in A.B.A.
Project on Minimum Standards for Criminal Justice, Standards Relating to
Pretrial Release, § 4.5(b), (c), p. 16 (1968). The references to the weight of
the evidence against the accused, in Rule 46(a)(1), (c) of the Federal Rules of
Criminal Procedure and in 18 U.S.C.A. § 3146(b), as a factor to be considered,
clearly do not have in view evidence introduced at a hearing under the rules of
evidence.

The rule does not exempt habeas corpus proceedings. The Supreme Court held in
Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L. Ed. 830 (1941), that the
practice of disposing of matters of fact on affidavit, which prevailed in some
circuits, did not "satisfy the command of the statute that the judge shall
proceed ‘to determine the facts of the case, by hearing the testimony and
arguments.’" This view accords with the emphasis in Townsend v. Sain, 372 U.S.
293, 83 S.Ct. 745, 9 L. Ed. 2d 770 (1963), upon trial-type proceedings, id. 311,
83 S.Ct. 745, with demeanor evidence as a significant factor, id. 322, 83 S.Ct.
745, in applications by state prisoners aggrieved by unconstitutional
detentions. Hence subdivision (e) applies the rule to habeas corpus proceedings
to the extent non inconsistent with the statute.

Subdivision (e). In a substantial number of special proceedings, ad hoc
evaluation has resulted in the promulgation of particularized evidentiary
provisions, by Act of Congress or by rule adopted by the Supreme Court. Well
adapted to the particular proceedings, though not apt candidates for inclusion
in a set of general rules, they are left undisturbed. Otherwise, however, the
rules of evidence are applicable to the proceedings enumerated in the
subdivision.

The rules states the present rule in the federal courts. Captial Traction Co.
v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873 (1899). The judge must, of
course, confine his remarks to what is disclosed by the evidence. He cannot
convey to the jury his purely personal reaction to credibility or to the merits
of the case; he can be neither argumentative nor an advocate. Quercia v. United
States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); Billeci v. United
States, 87 U.S.App.D.C. 274, 184 F.2d 394, 402, 24 A.L.R.2d 881 (1950). For
further discussion see the series of articles by Wright, The Invasion of Jury:
Temperature of the War, 27 Temp. L.Q. 137 (1953), Instructions to the Jury:
Summary Without Comment , 1954 Wash. U.L.Q. 177, Adequacy of Instructions to the
Jury, 53 Mich. L. Rev. 505, 813 (1955); A.L.I. Model Code of Evidence, Comment
to Rule 8; Maguire, Weinstein, et al., Cases and Materials on Evidence 737-740
(5th ed. 1965); Vanderbilt, Minimum Standards of Judicial
Administration 224-229 (1949).

Report of the House Committee on the Judiciary

Rule 105 as submitted by the Supreme Court concerned the issue of summing up
and comment by the judge. It provided that after the close of the evidence and
the arguments of counsel, the presiding judge could fairly and impartially sum
up the evidence and comment to the jury upon its weight and the credibility of
the witnesses, if he also instructed the jury that it was not bound thereby and
must make its own determination of those matters. The Committee recognized that
the Rule as submitted is consistent with long standing and current federal
practice. However, the aspect of the Rule dealing with the authority of a judge
to comment on the weight of the evidence and the credibility of witnesses—an
authority not granted to judges in most State courts—was highly controversial.
After much debate the Committee determined to delete the entire Rule, intending
that its action be understood as reflecting no conclusion as to the merits of
the proposed Rule and that the subject should be left for separate consideration
at another time.

Report of Senate Committee on the Judiciary

This rule as submitted by the Supreme Court permitted the judge to sum up and
comment on the evidence. The House struck the rule.

The committee accepts the House action with the understanding that the
present Federal practice, taken from the common law, of the trial judge’s
discretionary authority to comment on and summarize the evidence is left
undisturbed.

This rule governs presumptions generally. See Rule 302 for presumptions
controlled by state law and Rule 303 for those against an accused in a criminal
case.

Presumptions governed by this rule are given the effect of placing upon the
opposing party the burden of establishing the nonexistence of the presumed fact,
once the party invoking the presumption establishes the basic facts giving rise
to it. The same considerations of fairness, policy, and probability which
dictate the allocation of the burden of the various elements of a case as
between the prima facie case of a plaintiff and affirmative defenses also
underlie the creation of presumptions. These considerations are not satisfied by
giving a lesser effect to presumptions. Morgan and Maguire, Looking Backward and
forward at Evidence, 50 Harv. L. Rev. 909, 913 (1937); Morgan, Instructing the
Jury upon Presumptions and Burden of Proof, 47 Harv. L. Rev. 59, 82 (1933);
Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan. L.
Rev. 5 (1959).

The so-called "bursting bubble" theory, under which a presumption vanishes
upon the introduction of evidence which would support a finding of the
nonexistence of the presumed fact, even though not believed, is rejected as
according presumptions too "slight and evanescent" an effect. Morgan and
Maguire, supra, at p. 913.

In the opinion of the Advisory Committee, no constitutional infirmity attends
this view of presumptions. In Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S.
35, 31 S.Ct. 136, 55 L.Ed. 78 (1910), the Court upheld a Mississippi statute
which provided that in actions against railroads proof of injury inflicted by
the running of trains should be prima facie evidence of negligence by the
railroad. The injury in the case had resulted from a derailment. The opinion
made the points (1) that the only effect of the statute was to impose on the
railroad the duty of producing some evidence to the contrary, (2) that an
inference may be supplied by law if there is a rational connection between the
fact proved and the fact presumed, as long as the opposite party is not
precluded from presenting his evidence to the contrary, and (3) that
considerations of public policy arising from the character of the business
justified the application in question. Nineteen years later, in Western &
Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929),
the Court overturned a Georgia statute making railroads liable for damages done
by trains, unless the railroad made it appear that reasonable care had been
used, the presumption being against the railroad. The declaration alleged the
death of plaintiff’s husband from a grade crossing collision, due to specified
acts of negligence by defendant. The jury were instructed that proof of the
injury raised a presumption of negligence; the burden shifted to the railroad to
prove ordinary care; and unless it did so, they should find for plaintiff. The
instruction was held erroneous in an opinion stating (1) that there was no
rational connection between the mere fact of collision and negligence on the
part of anyone, and (2) that the statute was different from that in
Turnipseed in imposing a burden upon the railroad. The reader is left in a
state of some confusion. Is the difference between a derailment and a grade
crossing collision of no significance? Would the Turnipseed presumption
have been bad if it had imposed a burden of persuasion on defendant, although
that would in nowise have impaired its "rational connection"? If Henderson
forbids imposing a burden of persuasion on defendants, what happens to
affirmative defenses?

Two factors serve to explain Henderson. The first was that it was
common ground that negligence was indispensable to liability. Plaintiff thought
so, drafted her complaint accordingly, and relied upon the presumption. But how
in logic could the same presumption establish her alternative grounds of
negligence that the engineer was so blind he could not see decedent’s truck and
that he failed to stop after he saw it? Second, take away the basic assumption
of no liability without fault, as Turnipseed intimated might be done
("considerations of public policy arising out of the character of the
business"), and the structure of the decision in Henderson fails. No
question of logic would have arisen if the statute had simply said: a prima
facie case of liability is made by proof of injury by a train; lack of
negligence is an affirmative defense, to be pleaded and proved as other
affirmative defenses. The problem would be one of economic due process only.
While it seems likely that the Supreme Court of 1929 would have voted that due
process was denied, that result today would be unlikely. See, for example, the
shift in the direction of absolute liability in the consumer cases. Prosser, The
Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099
(1960).

Any doubt as to the constitutional permissibility of a presumption imposing a
burden of persuasion of the nonexistence of the presumed fact in civil cases is
laid at rest by Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3
L.Ed.2d 935 (1959). The Court unhesitatingly applied the North Dakota rule that
the presumption against suicide imposed on defendant the burden of proving that
the death of insured, under an accidental death clause, was due to suicide.

"Proof of coverage and of death by gunshot wound shifts the burden to the
insurer to establish that the death of the insured was due to his suicide." 359
U.S. at 443, 79 S.Ct. at 925.

"In a case like this one, North Dakota presumes that death was accidental and
places on the insurer the burden of proving that death resulted from suicide."
Id. at 446, 79 S.Ct. at 927.

The rational connection requirement survives in criminal cases, Tot v. United
States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), because the Court has
been unwilling to extend into that area the greater-includes-the-lesser theory
of Ferry v. Ramsay, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928). In that case
the Court sustained a Kansas statute under which bank directors were personally
liable for deposits made with their assent and with knowledge of insolvency, and
the fact of insolvency was prima facia evidence of assent and knowledge of
insolvency. Mr. Justice Holmes pointed out that the state legislature could have
made the directors personally liable to depositors in every case. Since the
statute imposed a less stringent liability, "the thing to be considered is the
result reached, not the possibly inartificial or clumsy way of reaching it." Id.
at 94, 48 S.Ct. at 444. Mr. Justice Sutherland dissented: though the state could
have created an absolute liability, it did not purport to do so; a rational
connection was necessary, but lacking, between the liability created and the
prima facie evidence of it; the result might be different if the basis of the
presumption were being open for business.

The Sutherland view has prevailed in criminal cases by virtue of the higher
standard of notice there required. The fiction that everyone is presumed to know
the law is applied to the substantive law of crimes as an alternative to
complete unenforceability. But the need does not extend to criminal evidence and
procedure, and the fiction does not encompass them. "Rational connection" is not
fictional or artificial, and so it is reasonable to suppose that Gainey should
have known that his presence at the site of an illicit still could convict him
of being connected with (carrying on) the business, United States v. Gainey, 380
U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), but not that Romano should have
known that his presence at a still could convict him of possessing it, United
States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

In his dissent in Gainey, Mr. Justice Black put it more artistically:

"It might be argued, although the court does not so argue or hold, that
Congress if it wished could make presence at a still a crime in itself, and so
Congress should be free to create crimes which are called ‘possession’ and
‘carrying on an illegal distillery business’ but which are defined in such a way
that unexplained presence is sufficient and indisputable evidence in all cases
to support conviction for those offenses. See Ferry v. Ramsey, 277 U.S. 312, 52
S.Ct. 358, 76 L.Ed. 796. Assuming for the sake of argument that Congress could
make unexplained presence a criminal act, and ignoring also the refusal of this
Court in other cases to uphold a statutory presumption on such a theory, see
Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772, there is no
indication here that Congress intended to adopt such a misleading method of
draftsmanship, nor in my judgment could the statutory provisions if so construed
escape condemnation for vagueness, under the principles applied in Lanzetta v.
New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, and many other cases." 380
U.S. at 84, n. 12, 85 S.Ct. at 766.

And the majority opinion in Romano agree with him:

"It may be, of course, that Congress has the power to make presence at an
illegal still a punishable crime, but we find no clear indication that it
intended to so exercise this power. The crime remains possession, not presence,
and with all due deference to the judgment of Congress, the former may not
constitutionally be inferred from the latter." 382 U.S. at 144, 86 S.Ct. at 284.

The rule does not spell out the procedural aspects of its application.
Questions as to when the evidence warrants submission of a presumption and what
instructions are proper under varying states of fact are believed to present no
particular difficulties.

Report of House Committee on the Judiciary

Rule 301 as submitted by the Supreme Court provided that in all cases a
presumption imposes on the party against whom it is directed the burden of
proving that the nonexistence of the presumed fact is more probable than its
existence. The Committee limited the scope of Rule 301 to "civil actions and
proceedings’ to effectuate its decision not to deal with the question of
presumptions in criminal cases. (See note in Rule 303 in discussion of Rules
deleted.) With respect to the weight to be given a presumption in a civil case,
the Committee agreed with the judgment implicit in the Court’s version that the
so-called "bursting bubble" theory of presumptions, whereby a presumption
vanishes upon the appearance of any contradicting evidence by the other party,
gives to presumptions too slight an effect. On the other hand, the Committee
believed that the Rule proposed by the Court, whereby a presumption permanently
alters the burden of persuasion, no matter how much contradicting evidence is
introduced—a view shared by only a few courts—lends too great a force to
presumptions. Accordingly, the Committee amended the Rule to adopt an
intermediate position under which a presumption does not vanish upon the
introduction of contradicting evidence, and does not change the burden of
persuasion; instead it is merely deemed sufficient evidence of the fact
presumed, to be considered by the jury or other finder of fact.

Subdivision (a). This rule is based largely upon A.L.I. Model Penal Code
§ 1.12(5) P.O.D. (1962) and United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754,
13 L. Ed. 2d 658 (1965). While the rule, unlike the Model Penal Code provision,
spells out the effect of common law presumptions as well as those created by
statute, cases involving the latter are no doubt of more frequent occurrence.
Congress has enacted numerous provisions to lessen the burden of the
prosecution, principally though not exclusively in the fields of narcotics
control and taxation of liquor. Occasionally, in the pattern of the usual common
law treatment of such matters as insanity, they take the form of assigning to
the defense the responsibility of raising specified matters as affirmative
defenses which are not within the scope of these rules. See Comment, A.L.I.
Model Penal Code § 1 1.13, T.D. No. 4 (1955). In other instances they assume a
variety of forms which are the concern of this rule. The provision may be that
proof of a specified fact (possession or presence) is sufficient to authorize
conviction. 26 U.S.C. § 4704(a), unlawful to buy or sell opium except from
original stamped package—absence of stamps from package prima facie evidence of
violation by person in possession; 26 U.S.C. § 4724(c), unlawful for person who
has not registered and paid special tax to possess narcotics—possession
presumptive evidence of violation. Sometimes the qualification is added, "unless
the defendant explains the possession [presence] to the satisfaction of the
jury." 18 U.S.C. § 545, possession of unlawfully imported goods sufficient for
conviction of smuggling, unless explained; 21 U.S.C. § 174, possession
sufficient for conviction of buying or selling narcotics known to have been
imported unlawfully, unless explained. See also 26 U.S.C. § 5601(a)(1), (a)(4),
(a)(8), (b)(1), (b)(2), (b)(4), relating to distilling operations. Another
somewhat different pattern makes possession evidence of a particular element of
the crime. 21 U.S.C. § 176b, crime to furnish unlawfully imported heroin to
juveniles—possession sufficient proof of unlawful importation, unless explained;
50 U.S.C.A. App. § 462(b), unlawful to possess draft card not lawfully issued to
holder, with intent to use for purposes of false identification—possession
sufficient evidence of intent, unless explained. See also 15 U.S.C. § 902(f), (i).

Differences between the permissible operation of presumptions against the
accused in criminal cases and in other situations prevent the formulation of a
comprehensive definition of the term "presumption," and none is attempted. Nor
do these rules purport to deal with problems of the validity of presumptions
except insofar as they may be found reflected in the formulation of permissible
procedures.

The presumption of innocence is outside the scope of the rule and unaffected
by it.

Subdivisions (b) and (c). It is axiomatic that a verdict cannot be
directed against the accused in a criminal case, 9 Wigmore § 2495, p. 312, with
the corollary that the judge is without authority to direct the jury to find
against the accused as to any element of the crime, A.L.I. Model Penal Code
§ 1.12(1) P.O.D. (1962). Although arguably the judge could direct the jury to
find against the accused as to a lesser fact, the tradition is against it, and
this rule makes no use of presumptions to remove any matters from final
determination by the jury.

The only distinction made among presumptions under this rule is with respect
to the measure of proof required in order to justify submission to the jury. If
the effect of the presumption is to establish guilt or an element of the crime
or to negative a defense, the measure of proof is the one widely accepted by the
Courts of Appeals as the standard for measuring the sufficiency of the evidence
in passing on motions for direct verdict (now judgment of acquittal); an
acquittal should be directed when reasonable jurymen must have a reasonable
doubt. Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229 (1947),
cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L. Ed. 1850; United States v.
Honeycutt, 311 F.2d 660 (4th Cir. 1962); Stephens v. United States, 354 F.2d 999
(5th Cir. 1956); Lambert v. United States, 261 F.2d 799 (5th Cir. 1958); United
States v. Leggett, 292 F.2d 423 (6th Cir. 1961); Cape v. United States, 283 F.2d
430 (9th Cir. 1960); Cartwright v. United States, 335 F.2d 919 (10th Cir. 1964).
Cf. United States v. Gonzales Castro, 228 F.2d 807 (2d Cir. 1956); United States
v. Masiello, 235 F.2d 279 (2d Cir. 1956), cert. denied Stickel v. United Statess,
352 U.S. 882, 77 S.Ct. 100, 1 L. Ed. 2d 79; United States v. Feinberg, 140 F.2d
592 (2d Cir. 1944). But cf. United States v. Arcuri, 282 F. Supp. 347 (E.D.N.Y.
1968), aff’d. 405 F.2d 691, cert. denied 395 U.S. 913, 89 S.Ct. 1760, 23 L. Ed.
2d 227; United States v. Melillo, 275 F. Supp. 314 (E.D.N.Y. 1967). If the
presumption operates upon a lesser aspect of the case than the issue of guilt
itself or an element of the crime or negativing a defense, the required measure
of proof is the less stringent one of substantial evidence, consistently with
the attitude usually taken with respect to particular items of evidence. 9
Wigmore § 2497, p. 324.

The treatment of presumptions in the rule is consistent with United States v.
Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L. Ed. 2d 658 (1965), where the matter was
considered in depth. After sustaining the validity of the provision of 26 U.S.C.
§ 5601(b)(2) that presence at the site is sufficient to convict of the offense
of carrying on the business of distiller without giving bond, unless the
presence is explained to the satisfaction of the jury, the Court turned to
procedural considerations and reached several conclusions. The power of the
judge to withdraw a case from the jury for insufficiency of evidence is left
unimpaired; he may submit the case on the basis of presence alone, but he is not
required to do so. Nor is he precluded from rendering judgment notwithstanding
the verdict. It is proper to tell the jury about the "statutory inference," if
they are told it is not conclusive. The jury may still acquit, even if it finds
defendant present and his presence is unexplained. [Compare the mandatory
character of the instruction condemned in Bollenbach v. United States, 326 U.S.
607, 66 S.Ct. 402, 90 L. Ed. 350 91946).] To avoid any implication that the
statutory language relative to explanation be taken as directing attention to
failure of the accused to testify, the better practice, said the Court, would be
to instruct the jury that they may draw the inference unless the evidence
provides a satisfactory explanation of defendant’s presence, omitting any
explicit reference to the statute.

The Final Report of the National Commission on Reform of Federal Criminal
Laws § 103(4) and (5) (1971) contains a careful formulation of the consequences
of a statutory presumption with an alternative formulation set forth in the
Comment thereto, and also of the effect of a prima facie case. In the criminal
code there proposed, the terms "presumption" and "prima facie case" are used
with precision and with reference to these meanings. In the federal criminal law
as it stands today, these terms are not used with precision. Moreover, common
law presumptions continue. Hence it is believed that the rule here proposed is
better adapted to the present situation until such time as the Congress enacts
legislation covering the subject, which the rule takes into account. If the
subject of common law presumptions is not covered by legislation, the need for
the rule in that regard will continue.

Report of House Committee on the Judiciary

Rule 303, as submitted by the Supreme Court was directed to the issues of
when, in criminal cases, a court may submit a presumption to a jury and he type
of instruction it should give. The Committee deleted this Rule since the subject
of presumptions in criminal cases is addressed in detail in bills now pending
before the committee to revise the federal criminal code. The Committee
determined to consider this question in the course of its study of these
proposals.

Subdivision (b). Permissible methods of proving habit or routine conduct
include opinion and specific instances sufficient in number to warrant a finding
that the habit or routine practice in fact existed. Opinion evidence must be
"rationally based on the perception of the witness" and helpful, under the
provisions of Rule 701. Proof by specific instances may be controlled by the
overriding provisions of Rule 403 for exclusion on grounds of prejudice,
confusion, misleading the jury, or waste of time. Thus the illustrations
following A.L.I. Model Code of Evidence Rule 307 suggests the possibility of
admitting testimony by W that on numerous occasions he had been with X when X
crossed a railroad track and that on each occasion X had first stopped and
looked in both directions, but discretion to exclude offers of 10 witnesses,
each testifying to a different occasion.

Similar provisions for proof by opinion or specific instances are found in
Uniform Rule 50 and Kansas Code of Civil Procedure § 60-450. New Jersey Rule 50
provides for proof by specific instances but is silent as to opinion. The
California Evidence Code is silent as to methods of proving habit, presumably
proceeding on the theory that any method is relevant and all relevant evidence
is admissible unless otherwise provided. Tentative Recommendation and a Study
Relating to the Uniform Rules of Evidence (Art. IV. Extrinsic Policies Affecting
Admissibility), Rep., Rec. & Study, Cal. Law Rev. Comm’n, 620 (1964).

Report of House Committee on the Judiciary

[The Committee’s reasons for deleting subdivision (b) are found in the
material following Rule 406.]

No attempt is made in these rules to incorporate the constitutional
provisions which relate to the admission and exclusion of evidence, whether
denominated as privileges or not. The grand design of these provisions does not
readily lend itself to codification. The final reference must be the provisions
themselves and the decisions construing them. Nor is formulating a rule an
appropriate means of settling unresolved constitutional questions.

Similarly, privileges created by act of Congress are not within the scope of
these rules. These privileges do not assume the form of broad principles; they
are the product of resolving particular problems in particular terms. Among them
are included such provisions as 13 U.S.C. § 9, generally prohibiting official
disclosure of census reports; 42 U.S.C. § 2000e-5(a), making inadmissible in
evidence anything said or done during Equal Employment Opportunity conciliation
proceeding; 42 U.S.C. § 2240, making required reports of incidents by nuclear
facility licensees inadmissible in actions for damages; 45 U.S.C. §§ 33, 41,
similarly as to reports of accidents by railroads, 49 U.S.C. § 1441(e),
declaring C.A.B. accident investigation reports inadmissible in actions for
damages. The rule leaves them undisturbed.

The reference to other rules adopted by the Supreme Court makes clear that
provisions relating to privilege in those rules will continue in operation. See,
for example, the "work product" immunity against discovery spelled out under the
Rules of Civil Procedure in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.
Ed. 451 (1947), now formalized in revised Rule 26(b)(3) of the Rules of Civil
Procedure, and the secrecy of grand jury proceedings provided by Criminal Rule
6.

With respect to privileges created by state law, these rules in some
instances grant them greater status than has heretofore been the case by
according them recognition in federal criminal proceedings, bankruptcy, and
federal question litigation. See Rules 502 and 510. There is, however, no
provision generally adopting state-created privileges.

In federal criminal prosecutions the primacy of federal law as to both
substance and procedure has been undoubted. See, for example, United States v.
Krol, 374 F.2d 776 (7th Cir. 1967), sustaining the admission in a federal
prosecution of evidence obtained by electronic eavesdropping, despite a state
statute declaring the use of these devices unlawful and evidence obtained
therefrom inadmissible. This primacy includes matters of privilege. As stated in
4 Barron, Federal Practice and Procedure § 2151, p. 175 (1951):

"The determination of the question whether a matter is privileged is
governed by federal decisions and the state statutes or rules of evidence
have no application."

In Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L. Ed. 369 (1933),
the Court had considered the competency of a wife to testify for her husband and
concluded that, absent congressional action or direction, the federal courts
were to follow the common law as they saw it "in accordance with present day
standards of wisdom and justice." And in Wolfle v. United States, 291 U.S. 7, 54
S.Ct. 279, 78 L. Ed. 617 (1934), the Court said with respect to the standard
appropriate in determining a claim of privilege for an alleged confidential
communication between spouses in a federal criminal prosecution:

"So our decision here, in the absence of Congressional legislation on the
subject, is to be controlled by common law principles, not by local
statute." Id., 13, 54 S. Ct. 15 280.

On the basis of Funk and Wolfle, the Advisory Committee on
Rules of Criminal Procedure formulated Rule 26, which was adopted by the Court.
The pertinent part of the rule provided:

"The ... privileges of witnesses shall be governed, except when an act of
Congress or these rules otherwise provide, by the principles of the common
law as they may be interpreted ... in the light of reason and experience."

As regards bankruptcy, section 21(a) of the Bankruptcy Act provides for
examination of the bankrupt and his spouse concerning the acts, conduct, or
property of the bankrupt. The Act limits examination of the spouse to business
transacted by her or to which she is a party but provides "That the spouse may
be so examined, any law of the United States or of any State to the contrary
notwithstanding." 11 U.S.C. § 44(a). The effect of the quoted language is
clearly to override any conflicting state rule of incompetency or privilege
against spousal testimony. A fair reading would also indicate an overriding of
any contrary state rule of privileged confidential spousal communications. Its
validity has never been questioned and seems most unlikely to be. As to other
privileges, the suggestion has been made that state law applies, though with
little citation of authority. 2 Moore’s Collier on Bankruptcy ¶ 21.13, p. 297
(14th ed. 1961). This position seems to be contrary to the expression of the
Court in McCarthy v. Arndstein, 266 U.S. 34, 39, 45 S. Ct. 16, 16, 69 L. Ed. 158
(1924), which speaks in the pattern of Rule 26 of the Federal Rules of Criminal
Procedure:

"There is no provision [in the Bankruptcy Act] prescribing the rules by
which the examination is to be governed. These are, impliedly, the general
rules governing the admissibility of evidence and the competency and
compellability of witnesses."

In view of these considerations, it is apparent that, to the extent that they
accord state privileges standing in federal criminal cases, bankruptcy, and
federal question cases, the rules go beyond what previously has been though
necessary or proper.

On the other hand, in diversity cases, or perhaps more accurately cases in
which state law furnishes the rule of decision, the rules avoid giving state
privileges the effect which substantial authority has thought necessary and
proper. Regardless of what might once have been thought to be the command of
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188 (1938), as to
observance of state created privileges in diversity cases, Hanna v. Plumer, 380
U.S. 460, 85 S.Ct. 1136, 14 L. Ed. 2d 8 (1965), is believed to locate the
problem in the area of choice rather than of necessity. Wright, Procedural
Reform: Its Limitations and Its Future, 1 Ga. L. Rev. 563, 572-573 (1967).
Contra, Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 555, n. 2 (2d Cir.
1967), and see authorities there cited. Hence all significant policy factors
need to be considered in order than the choice may be a wise one.

The arguments advanced in favor of recognizing state privileges are: a state
privilege is an essential characteristic of a relationship or status created by
state law and thus is substantive in the Erie sense; state policy ought
not to be frustrated by the accident of diversity; the allowance or denial of a
privilege is so likely to affect the outcome of litigation as to encourage forum
selection on that basis, not a proper function of diversity jurisdiction. There
are persuasive answer to these arguments.

(1) As to the question of "substance," it is true that a privilege commonly
represents an aspect of a relationship created and defined by a State. For
example, a confidential communications privilege is often an incident of
marriage. However, in litigation involving the relationship itself, the
privilege is not ordinarily one of the issues. In fact, statutes frequently make
the communication privilege inapplicable in cases of divorce. McCormick § 88, p.
177. The same is true with respect to the attorney-client privilege when the
parties to the relationship have a falling out. The reality of the matter is
that privilege is called into operation, not when the relation giving rise to
the privilege is being litigated, but when the litigation involves something
substantively devoid of relation to the privilege. The appearance of privilege
in the case is quite by accident, and its effect is to block off the tribunal
from a source of information. Thus its real impact is on the method of proof in
the case, and in comparison any substantive aspect appears almost tenuous.

(2) By most standards, criminal prosecutions are attended by more serious
consequences than civil litigation, and it must be evident that the criminal
area has the greatest sensitivity where privilege is concerned. Nevertheless, as
previously noted, state privileges traditional have given way in federal
criminal prosecutions. If a privilege is denied in the area of greatest
sensitivity, it tends to become illusory as a significant aspect of the
relationship out of which it arises. For example, in a state having by statute
an accountant’s privilege, only the most imperceptible added force would be
given the privilege by putting the accountant in a position to assure his client
that, while he could not block disclosure in a federal criminal prosecution, he
could do so in diversity cases as well as in state court proceedings. Thus
viewed, state interest in privilege appears less substantial than at first
glance might seem to be the case.

Moreover, federal interest is not lacking. It can scarcely be contended that
once diversity is invoked the federal government no longer has a legitimate
concern in the quality of judicial administration conducted under its aegis. The
demise of conformity and the adoption of the Federal Rules of Civil Procedure
stand as a witness to the contrary.

(3) A large measure of forum shopping is recognized as legitimate in the
American judicial system. Subject to the limitations of jurisdiction and the
relatively modest controls imposed by venue provisions and the doctrine of forum
non conveniens, plaintiffs are allowed in general a free choice of forum.
Diversity jurisdiction has as its basic purpose the giving of a choice, not only
to plaintiffs but, in removal situations, also to defendants. In principle, the
basis of the choice is the supposed need to escape from local prejudice. If the
choice were tightly confined on that basis, then complete conformity to local
procedure as well as substantive law would be required. This, of course, is not
the case, and the choice may in fact be influenced by a wide range of factors.
As Dean Ladd has pointed out, a litigant may select the federal court "because
of the federal procedural rules, the liberal discovery provisions, the quality
of jurors expected in the federal court, the respect held for federal judges,
the control of federal judges over a trial, the summation and comment upon the
weight of evidence by the judge, or he authority to grant a new trial if the
judge regards the verdict against the weight of the evidence." Ladd, Privileges,
1969 Ariz. St. L.J. 555, 564. Present Rule 43(a) of the Civil Rules specifies a
broader range of admissibility in federal than in state courts and makes no
exception for diversity cases. Note should also be taken that Rule 26(b)(2) of
the Rules of Civil Procedure, as revised, allows discovery to be had of
liability insurance, without regard to local state law upon the subject.

When attention is directed to the practical dimensions of the problem, they
are found not be great. The privileges affected are few in number. Most states
provide a physician-patient privilege; the proposed rules limit the privilege to
a psychotherapist-patient relationship. See Advisory Committee’s Note to Rule
504. The area of marital privilege under the proposed rules is narrower than in
most states. See Rule 505. Some states recognize privileges for journalists and
accountants; the proposed rules do not.

Physician-patient is the most widely recognized privilege not found in the
proposed rules. As a practical matter it was largely eliminated in diversity
cases when rule 35 of the Rules of civil Procedure became effective in 1938.
Under that rule, a party physically examined pursuant to court order, by
requesting and obtaining a copy of the report or by taking the deposition of the
examiner, waives any privilege regarding the testimony of every other person who
has examined him in respect to the same condition. While waiver may be avoided
by neither requesting the report nor taking the examiner’s deposition, the price
is one which most litigant-patients are probably not prepared to pay.

Statutes which require the making of returns or reports sometimes confer on
the reporting party a privilege against disclosure, commonly coupled with a
prohibition against disclosure by the officer to whom the report is made. Some
of the federal statutes of this kind are mentioned in the Advisory Committee’s
Note to Rule 501, supra. See also the Note to Rule 402, supra. A provision
against disclosure may be included in a statute for a variety of reasons, the
chief of which are probably assuring the validity of the statute against claims
of self-incrimination, honoring the privilege against self-incrimination, and
encouraging the furnishing of the required information by assuring privacy.

These statutes, both state and federal, may generally be assumed to embody
policies of significant dimension. Rule 501 insulates the federal provisions
against disturbance by these rules; the present rule reiterates a result
commonly specified in federal statutes and extends its application to state
statutes of similar character. Illustrations of the kinds of returns and reports
contemplated by the rule appear in the cases, in which a reluctance to compel
disclosure is manifested. In re Reid, 155 F. 933 (E.D. Mich. 1906), assessor not
compelled to produce bankrupt’s property tax return in view of statute
forbidding disclosure; In re Valecia Condensed Milk Co., 240 F. 310 (7th Cir.
1917), secretary of state tax commission not compelled to produce bankrupt’s
income tax returns in violation of statute; Herman Bros. Pet Supply, Inc. v.
N.L.R.B., 360 F.2d 176 (6th Cir. 1966), subpoena denied for production of
reports to state employment security commission prohibited by statute, in
proceeding for back wages. And see the discussion of motor vehicle accident
reports in Krizak v. W.C. Brooks & Sons, Inc., 320 F.2d 37, 42-43 (4th Cir.
1963). Cf. In re Hines, 69 F.2d 52 (2d Cir. 1934).

The status of employees who are used in the process of communicating, as
distinguished from those who are parties to the communication, is treated in
paragraph (4) of subdivision (a) of the rule.

(2) A "lawyer" is a person licensed to practice law in any state or nation.
There is no requirement that the licensing state or nation recognize the
attorney-client privilege, thus avoiding excursions into conflict of laws
questions. "Lawyer" also includes a person reasonably believed to be a lawyer.
For similar provisions, see California Evidence Code § 950.

(3) The definition of "representative of the lawyer" recognizes that the
lawyer may, in rendering legal services, utilize the services of assistants in
addition to those employed in the process of communicating. Thus the definition
includes an expert employed to assist in rendering legal advice. United States
v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant). Cf. Himmelfarb v. United
States, 175 F.2d 924 (9th Cir. 1949). It also includes an expert employed to
assist in the planning and conduct of litigation, though not one employed to
testify as a witness. Lalance & Grojean Mfg. Co. v. Haberman Mfg. Co., 87 F. 563
(S.D.N.Y. 1898), and see revised Civil Rule 26(b)(4). The definition does to,
however, limit "representative of the lawyer" to experts. Whether his
compensation is derived immediately from the lawyer or the client is not
material.

(4) The requisite confidentiality of communication is defined in terms of
intent. A communication made in public or meant to be relayed to outsiders or
which is divulged by the client to third persons can scarcely be considered
confidential. McCormick § 95. The intent is inferable from the circumstances.
Unless intent to disclose is apparent, the attorney-client communication is
confidential. Taking or failing to take precautions may be considered as bearing
on intent.

Practicality requires that some disclosure be allowed beyond the immediate
circle of lawyer-client and their representatives without impairing
confidentiality. Hence the definition allows disclosure to persons "to whom
disclosure is in furtherance of the rendition of professional legal services to
the client," contemplating those in such relation to the client as "spouse,
parent, business associate, or joint client." Comment, California Evidence Code
§ 952.

Disclosure may also be made to persons "reasonably necessary for the
transmission of the communication," without loss of confidentiality.

Subdivision (b) sets forth the privilege, using the previously defined
terms: client, lawyer, representative of the lawyer, and confidential
communication.

Substantial authority has in the past allowed the eavesdropper to testify to
overheard privileged conversations and has admitted intercepted privileged
letters. Today, the evolution of more sophisticated techniques of eavesdropping
and interception calls for abandonment of this position. The rule accordingly
adopts a policy of protection against these kinds of invasion of the privilege.

The privilege extends to communications (1) between client or his
representative and lawyer or his representative, (2) between lawyer and lawyer’s
representative, (3) by client or his lawyer to a lawyer representing another in
a matter of common interest, (4) between representatives of the client or the
client and a representative of the client, and (5) between lawyers representing
the client. All these communications must be specifically for the purpose of
obtaining legal services for the client; otherwise the privilege does not
attach.

The third type of communication occurs in the "joint defense" or "pooled
information" situation, where different lawyers represent clients who have some
interests in common. In Chahoon v. Commonwealth, 62 Va. 822 (1871), the court
said that the various clients might have retained one attorney to represent all;
hence everything said at a joint conference was privileged, and one of the
clients could prevent another from disclosing what the other had himself said.
The result seems to be incorrect in overlooking a frequent reason for retaining
different attorneys by the various clients, namely actually or potentially
conflicting interests in addition to the common interest which brings them
together. The needs of these cases seem better to be met by allowing each client
a privilege as to his own statements. Thus if all resist disclosure, none will
occur. Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir. 1964). But,
if for reasons of his own, a client wishes to disclose his own statements made
at the joint conference, he should be permitted to do so, and the rule is to
that effect. The rule does not apply to situations where there is no common
interest to be promoted by a joint consultation, and the parties meet on a
purely adversary basis. Vance v. State, 190 Tenn. 521, 230 S.W.2d 987 (1950),
cert. denied 339 U.S. 988, 70 S.Ct. 1010, 94 L. Ed. 1389. Cf. Hunydee v. United
States, 355 F.2d 183 (9th Cir. 1965).

Subdivision (c). The privilege is, of course, that of the client, to be
claimed by him or by his personal representative. The successor of a dissolved
corporate client may claim the privilege. California Evidence Code § 953; New
Jersey Evidence Rule 26(1). Contra, Uniform Rule 26(1).

The lawyer may not claim the privilege on his own behalf. However, he may
claim it on behalf of the clients. It is assumed that the ethics of the
profession will require him to do so except under most unusual circumstances.
American Bar Association, Canons of Professional Ethics, Canon 37. His authority
to make the claim is presumed unless there is evidence to the contrary, as would
be the case if the client were now a party to litigation in which the question
arose and were represented by other counsel. Ex parte Lipscomb, 111 Tex. 409,
239 S.W. 1101 (1922).

Subdivision (d) in general incorporates well established exceptions.

(1) The privilege does not extend to advice in aid of future wrongdoing. 8
Wigmore § 2298 (McNaughton Rev. 1961). The wrongdoing need not be that of the
client. The provision that the client knew or reasonably should have known of
the criminal or fraudulent nature of the act is designed to protect the client
who is erroneously advised that a proposed action is within the law. No
preliminary finding that sufficient evidence aside from the communication has
been introduced to warrant a finding that the services were sought to enable the
commission of a wrong is required. Cf. Clark v. United States, 289 U.S. 1,
15-16, 53 S.Ct. 465, 469-470, 77 L. Ed. 993 (1933); Uniform Rule 26(2)(a). While
any general exploration of what transpired between attorney and client would, of
course, be inappropriate it is wholly feasible, either at the discovery stage or
during trial to focus the inquiry by specific questions as to avoid any broad
inquiry into attorney-client communications. Numerous cases reflect this
approach.

(2) Normally the privilege survives the death of the client and may be
asserted by his representative. Subdivision (c), supra. When, however, the
identity of the person who steps into the client’s shoes is in issue, as in a
will contest, the identity entitled to claim the privilege remains undetermined
until the conclusion of litigation. The choice is thus between allowing both
sides or neither to assert the privilege, with authority and reason favoring the
latter view. McCormick § 98; Uniform Rule 26(2)(b); California Evidence Code
§ 957; Kansas Code of Civil Procedure § 60-426(b)(2); New Jersey Evidence Rule
26(2)(b).

(3) The exception is required by considerations of fairness and policy when
questions arise out of dealings between attorney and client as in cases of
controversy over attorney’s fees, claims of inadequacy, of representation, or
charges of professional misconduct. McCormick § 95; Uniform Rule 26(2)(c);
California Evidence Code § 958; Kansas Code of Civil Procedure § 60-426(b)(3);
New Jersey Evidence Rule 26(2)(c).

(4) When the lawyer acts as attesting witness, the approval of the client to
his so doing may safely be assumed, and waiver of the privilege as to any
relevant lawyer-client communications is a proper result. McCormick § 92, p.
184; Uniform Rule 262(2)(d); California Evidence Code § 959; Kansas Code of
Civil Procedure § 60-426(b)(d) [sic].

(5) The subdivision states existing law. McCormick § 95, pp. 192-193. For
similar provisions, see Uniform Rule 26(2)(3); California Evidence Code § 962;
Kansas Code of Civil Procedure § 60-426(b)(4); New Jersey Evidence Rule 26(2).
The situation with which this provision deals is to be distinguished from the
case of clients with a common interest who retain different lawyers. See
subdivision (b)(3) of this rule, supra.

The rules contain no provision for a general physician-patient privilege.
While many states have by statute created the privilege, the exceptions which
have been found necessary in order to obtain information required by the public
interest or to avoid fraud are so numerous as to leave little if any basis for
the privilege. Among the exclusions from the statutory privilege, the following
may be enumerated; communications not made for purposes of diagnosis and
treatment; commitment and restoration proceedings; issues as to wills or
otherwise between parties claiming by succession from the patient; actions on
insurance communications in furtherance of crime or fraud; mental and physical
condition put in issue by patient (personal injury cases); malpractice actions;
and some or all criminal prosecutions. California, for example, excepts cases in
which the patient puts his condition in issue, all criminal proceedings, will
and similar contests, malpractice cases, and disciplinary proceedings, as well
as certain other situations, thus leaving virtually nothing covered by the
privilege. California Evidence Code §§ 990-1007. For other illustrative statutes
see Ill. Rev. Stat. 1967, c. 51, § 5.1; N.Y.C.P.L.R. § 4504; N. C. Gen. Stat.
1953, § 8-53. Moreover, the possibility of compelling gratuitous disclosure by
the physician is foreclosed by his standing to raise the question of relevancy.
See Note on "Official Information" Privilege following Rule 509, infra.

The doubts attendant upon the general physician-patient privilege are not
present when the relationship is that of psychotherapist and patient. While the
common law recognized no general physician-patient privilege, it had indicated a
disposition to recognize a psychotherapist-patient privilege, Note, Confidential
Communications to a Psychotherapist: A New Testimonial Privilege, 47 Nw. U. L.
Rev. 384 (1952), when legislatures began moving into the field.

The case for the privilege is convincingly stated in Report No. 45, Group for
the Advancement of Psychiatry 92 (1960):

"Among physicians, the psychiatrist has a special need to maintain
confidentiality. His capacity to help his patients is completely dependent
upon their willingness and ability to talk freely. This makes it difficult
if not impossible for him to function without being able to assure his
patients of confidentiality and, indeed, privilege communication. Where
there may be exceptions to this general rule ..., there is wide agreement
that confidentiality is a sine quo non for successful psychiatric
treatment. The relationship may well be likened to that of the
priest-penitent or the lawyer-client. Psychiatrists not only explore the
very depths of their patients’ conscious, but their unconscious feelings and
attitudes as well. Therapeutic effectiveness necessitates going beyond a
patient’s awareness and, in order to do this, it must be possible to
communicate freely. A threat to secrecy blocks successful treatment.

A much more extended exposition of the case for the privilege is made in
Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L. Rev.
175, 184 (1960), quoted extensively in the careful Tentative Recommendation and
Study Relating to the Uniform Rules of Evidence (Article V. Privileges), Cal.
Law Rev. Comm’n, 417 (1964) The conclusion is reached that Wigmore’s four
conditions need to justify the existence of a privilege are amply satisfied.

While many of the statutes simply place the communications on the same basis
as those between attorney and client, 8 Wigmore § 2286, n. 23 (McNaughton Rev.
1961), basic differences between the two relationships forbid resorting to
attorney-client save as a helpful point of departure. Goldstein and Katz,
Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 36
Conn. B. J. 175, 182 (1962).

Subdivision (a). (1) The definition of patient does not include a person
submitting to examination for scientific purposes. Cf. Cal. Evidence Code
§ 1101. Attention is directed to 42 U.S.C. 242(a)(2), as amended by the Drug
Abuse and Control Act of 970, P.L. 91-513, authorizing the Secretary of Health,
Education, and Welfare to withhold the identity of persons whoa re the subjects
of research on the use and effect of drugs. The rule would leave this provision
in full force. See Rule 501.

(2) The definition of psychotherapist embraces a medical doctor while engaged
in the diagnosis or treatment of mental or emotional conditions, including drug
addiction, in order not to exclude the general practitioner and to avoid the
making of needless refined distinctions concerning what is and what is not the
practice of psychiatry. The requirement that the psychologist be in fact
licensed, and not merely believed to be so, is believed to be justified by the
number of persons, other than psychiatrists, purporting to render
psychotherapeutic aid and the variety of their theories. Cal. Law Rev. Comm’n.,
supra, at pp. 434-437.

The clarification of mental or emotional condition as including drug
addiction is consistent with current approaches to drug abuse problems. See,
e.g., the definition of "drug dependent person" in 42 U.S.C. 201(q), added by
the Drug Abuse Prevention and Control Act of 1970, P.L. 91-513.

(3) Confidential communication is defined in terms conformable with those of
the lawyer-client privilege, Rule 503(a)(4), supra, with changes appropriate to
the difference in circumstance.

Subdivisions (b) and (c). The lawyer-client rule is drawn upon for the
phrasing of the general rule of privilege and the determination of those who may
claim it. See Rule 503(b) and (c).

The specific inclusion of communications made for the diagnosis and treatment
of drug addiction recognizes the continuing contemporary concern with
rehabilitation of drug dependent persons and is designed to implement that
policy by encouraging persons in need thereof to seek assistance. The provision
is in harmony with Congressional actions in this area. See 43 U.S.C. § 260,
providing for voluntary hospitalization of addicts or persons with drug
dependence problems and prohibiting use of evidence of admission or treatment in
any proceeding against him, and 42 U.S.C. § 3419 providing that in voluntary or
involuntary commitment of addicts the results of any hearing, examination, test,
or procedure used to determine addiction shall not be used against the patient
in any criminal proceeding.

Subdivision (d). The exceptions differ substantially from those of the
attorney-client privilege, as a result of the basic differences in the
relationships. While it has been argued convincingly that the nature of the
psychotherapist-patient relationship demands complete security against legally
coerced disclosure in all circumstances, Louisell, The Psychologist in Today’s
Legal World: Part II, 41 Minn. L. Rev. 731, 746 (1957), the committee of
psychiatrists and lawyers who drafted the Connecticut statute concluded that in
three instances the need for disclosure was sufficiently great to justify the
risk of possible impairment of the relationship. Goldstein and Katz,
Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 36
Conn. F. J. 175 (1962). These three exceptions are incorporated in the present
rule.

(1) The interests of both patient and public call for a departure from
confidentiality in commitment proceedings. Since disclosure is authorized only
when the psychotherapist determines that hospitalization is needed, control over
disclosure is placed largely in the hands of a person in whom the patient has
already manifested confidence. Hence damage to the relationship is unlikely.

(2) In a court ordered examination, the relationship is likely to be an arm’s
length one, though not necessarily so. In any event, an exception is necessary
for the effective utilization of this important and growing procedure. The
exception, it will be observed, deals with a court ordered examination rather
than with a court appointed psychotherapist. Also, the exception is effective
only with respect to the particular purpose for which the examination is
ordered. The rule thus conforms with the provisions of 18 U.S.C. § 4244 that no
statement made by the accused in the course of an examination into competency to
stand trial is admissible on the issue of guilt and of 42 U.S.C. § 3420 that a
physician conducting an examination in a drug addiction commitment proceeding is
a competent and reliable witness.

(3) By injecting his condition into litigation, the patient must be said to
waive the privilege, in fairness and to avoid abuses. Similar considerations
prevail after the patient’s death.

Subdivision (a). Rules of evidence have evolved around the marriage
relationship in four respects: (1) incompetency of one spouse to testify for the
other; (2) privilege of one spouse not to testify against the other; (3)
privilege of one spouse not to have the other testify against him; and (4)
privilege against disclosure of confidential communications between spouses,
sometimes extended to information learned by virtue of the existence of the
relationship. Today these matters are largely governed by statutes.

With the disappearance of the disqualification of parties and interested
persons, the basis for spousal incompetency no longer existed, and it, too,
virtually disappeared in both civil and criminal actions. Usually reached by
statute, this result was reached for federal courts by the process of decision.
Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L. Ed. 369 (1933). These
rules contain no recognition of incompetency of one spouse to testify for the
other.

While some 10 jurisdictions recognize a privilege not to testify against
one’s spouse in a criminal case, and a much smaller number do so in civil cases,
the great majority recognizes no privilege on the part of the testifying spouse,
and this is the position taken by the rule. Compare Wyatt v. United States, 362
U.S. 525, 80 S.Ct. 901, 4 L. Ed. 2d 931 (1960), a Mann Act prosecution in which
the wife was the victim. The majority opinion held that she could not claim
privilege and was compellable to testify. The holding was narrowly based: The
Mann Act presupposed that the women with whom it dealt had no independent wills
of their own, and this legislative judgment precluded allowing a victim-wife an
option whether to testify, lest the policy of the statute be defeated. A
vigorous dissent took the view that nothing in the Mann Act required departure
from usual doctrine, which was conceived to be one of allowing the injured party
to claim or waive privilege.

About 30 jurisdictions recognize a privilege of an accused in a criminal case
to prevent his or her spouse from testifying. It is believed to represent the
one aspect of marital privilege the continuation of which is warranted. In
Hawkins v. United State, 358 U.S. 74, 79 S.Ct. 136, 3 L. Ed. 2d 125 (1958) it
was sustained. Cf. McCormick § 66; 8 Wigmore § 2228 (McNaughton Rev. 1961):
Comment, Uniform Rule 23(2).

The rule recognizes no privilege for confidential communications. The
traditional justifications for privileges not to testify against a spouse and
not to be testified against by one’s spouse have been the prevention of marital
dissension and the repugnancy of requiring a person to condemn or be condemned
by his spouse. 8 Wigmore §§ 2228, 2241 (McNaughton Rev. 1961). These
considerations bear no relevancy to marital communications. Nor can it be
assumed that marital conduct will be affected by a privilege for confidential
communications of whose existence the parties in all likelihood is unaware. The
other communication privileges, by way of contrast, have as one party a
professional person who can be expected to inform the other of the existence of
the privilege. Moreover, the relationships form which those privileges arise are
essentially and almost exclusively verbal in nature, quite unlike marriage. See
Hutchins and Slesinger, Some Observations on the Law of Evidence: Family
Relations, 13 Minn. L. Rev. 675 (1929). Cf. McCormick § 90, 8 Wigmore § 2337 (McNaughton
Rev. 1961).

The parties are not spouses if the marriage was a sham. Lutwak v. United
States, 344 U.S. 604, 73 S.Ct. 481, 97 L. Ed. 593 (1953), or they have been
divorced Barsky v. United States, 339 F.2d 180 (9th Cir. 1964), and therefore
the privilege is not applicable.

Subdivision (b). This provision is a counterpart of Rules 503(c), 504(c),
and 506(c). Its purpose is to provide a procedure for preventing the taking of
the spouse’s testimony notably in grand jury proceedings, when the accused is
absent and does not know that a situation appropriate for a claim of privilege
is presented. If the privilege is not claimed by the spouse, the protection of
Rule 512 is available.

Subdivision (c) contains three exceptions to the privilege against
spousal testimony in criminal cases.

(1) The need of limitation upon the privilege in order to avoid grave
injustice in cases of offenses against the other spouse or a child of either can
scarcely be denied. 8 Wigmore § 2239 (McNaughton Rev. 1961). The rule therefore
disallows any privilege against spousal testimony in these cases and in this
respect is in accord with the result reached in Wyatt v. United States, 362 U.S.
525, 80 S.Ct. 901, 4 L. Ed. 2d 931 (1960), a Mann Act prosecution, denying the
accused the privilege of excluding his wife’s testimony, since she was the woman
who was transported for immoral purposes.

(2) The second exception renders the privilege inapplicable as to matters
occurring prior to the marriage. This provision eliminates the possibility of
suppressing testimony by marrying the witness.

(3) The third exception continues and expands established Congressional
policy. In prosecutions for importing aliens for immoral purposes, Congress has
specifically denied the accused any privilege not to have his spouse testify
against him. 8 U.S.C. § 1328. No provision of this nature is included in the
Mann Act, and in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L. Ed.
2d 125 (1958), the conclusion was reached that the common law privilege
continued. Consistency requires similar results in the two situations. The rule
adopts the Congressional approach, as based upon a more realistic appraisal of
the marriage relationship in cases of this kind, in preference to the specific
result in Hawkins. Note the common law treatment of pimping and sexual
offenses with third persons as exceptions to marital privilege. 8 Wigmore § 2239
(McNaughton Rev. 1961).

With respect to bankruptcy proceedings, the smallness of the area of spousal
privilege under the rule and the general inapplicability of privileges created
by state law render unnecessary any special provision for examination of the
spouse of the bankrupt, such as that now contained in section 21(a) of the
Bankruptcy Act. l 11 U.S.C. § 44(a).

The considerations which dictate the recognition of privileges generally seem
strongly to favor a privilege for confidential communications to clergymen.
During the period when most of the common law privileges were taking shape, no
clear-cut privilege for communications between priest and penitent emerged. 8
Wigmore § 2394 (McNaughton Rev. 1961). The English political climate of the time
may well furnish the explanation. In this country, however, the privilege has
been recognized by statute in about two-thirds of the states and occasionally by
the common law process of decision. Id., § 2395; Mullen v. United States, 105
U.S. App. D.C. 25, 263 F.2d 275 (1958).

Subdivision (a). Paragraph (1) defines a clergyman as a "minister,
priest, rabbi, or other similar functionary of a religious organization." The
concept is necessarily broader than that inherent in the ministerial exemption
for purposes of Selective Service. See United States v. Jackson, 369 F.2d 936
(4th Cir. 1966). However, it is not so broad as to include all self-denominated
"ministers." A fair construction of the language requires that the person to
whom the status is sought to be attached be regularly engaged in activities
conforming at least in a general way to those of a Catholic priest, Jewish
rabbi, or minister of an established Protestant denomination, though not
necessarily on a full-time basis. No further specification seems possible in
view of the lack of licensing and certification procedures for clergymen.
However, this lack seems to have occasioned no particular difficulties in
connection with the solemnization of marriages, which suggests that none may be
anticipated here. For similar definitions of "clergyman" see California Evidence
Code § 1030; New Jersey Evidence Rule 29.

The "reasonable belief" provision finds support in similar provisions for
lawyer-client in Rule 503 and for psychotherapist-patient in Rule 504. A
parallel is also found in the recognition of the validity of marriages performed
by unauthorized persons if the parties reasonably believed them to be legally
qualified. Harper and Skolnick, Problems of the Family 153 (Rev. Ed. 1962).

(2) The definition of "confidential" communication is consistent with the use
of the term in Rule 503(a)(5) for lawyer-client and in Rule 504(a)(3) for
psychotherapist-patient, suitably adapted to communications to clergymen.

Subdivision (b). The choice between a privilege narrowly restricted to
doctrinally required confessions and a privilege broadly applicable to all
confidential communications with a clergyman in his professional character as
spiritual adviser has been exercised in favor of the latter. Many clergymen now
receive training in marriage counseling and the handling of personality
problems. Matters of this kind fall readily onto the realm of the spirit. The
same considerations which underlie the psychotherapist-patient privilege of Rule
504 suggest a broad application of the privilege for communications to
clergymen.

State statutes and rules fall in both the narrow and broad categories. A
typical narrow statute proscribes disclosure of "a confession ... made ... in
the course of discipline enjoined by the church to which he belongs." Ariz. Rev.
Stats. Ann. 1956, § 12-2233. See also California Evidence Code § 1032; Uniform
Rule 29. Illustrative of the broader privilege are statutes applying to
"information communicated to him in a confidential manner, properly entrusted to
him in his professional capacity, and necessary to enable him to discharge the
functions of his office according to the usual course of his practice of
discipline, wherein such person so communicating ... is seeking spiritual
counsel and advice," Fla. Stats. Ann. 1960, § 90.241, or to any "confidential
communication properly entrusted to him in his professional capacity, and
necessary and proper to enable him to discharge the functions of his office
according to the usual course of practice or discipline," Iowa Code Ann. 1950,
§ 622.10. See also Ill. Rev. Stats. 1967, c. 51, § 48.1; Minn. Stats. Ann. 1945,
§ 595.02(3); New Jersey Evidence Rule 29.

Under the privilege as phrased, the communicating person is entitled to
prevent disclosure not only by himself but also by the clergyman and by
eavesdroppers. For discussion see Advisory Committee’s Note under lawyer-client
privilege, Rule 503(b).

The nature of what may reasonably be considered spiritual advice makes it
unnecessary to include in the rule a specific exception for communications in
furtherance of crime or fraud, as in Rule 503(d)(1).

Subdivision (c) makes clear that the privilege belongs to the
communicating person. However, a prima facie authority on the part of the
clergyman to claim the privilege on behalf of the person is recognized. The
discipline of the particular church and the discreetness of the clergyman are
believed to constitute sufficient safeguards for the absent communicating
person. See Advisory Committee’s Note to the similar provision with respect to
attorney-client in Rule 503(c).

Secrecy in voting is an essential aspect of effective democratic government,
insuring free exercise of the franchise and fairness in elections. Secrecy after
the ballot has been cast is an essential as secrecy in the act of voting.
Nutting, Freedom of Silence: Constitutional Protection Against Governmental
Intrusion in Political Affairs, 47 Mich. L. Rev. 181, 191 (1948). Consequently a
privilege has long been recognized on the part of a voter to decline to disclose
how he voted. Required disclosure would be the exercise of a "kind of
inquisitorial power highly injurious to the suffrages of a free people, as well
as tending to create cabals and disturbances between contending parties in
popular elections." Johnston v. Charleston, 1 Bay 441, 442 (S. C. 1795).

The exception for illegally cast votes is a common one under both statutes
and case law, Nutting, supra, at p. 192; 8 Wigmore § 2241, p. 163 (McNaughton
Rev. 1961). The policy considerations which underlie the privilege are not
applicable to the illegal voter. However, nothing in the exception purports to
foreclose an illegal voter from invoking the privilege against
self-incrimination under appropriate circumstances.

While sometimes said not to be a true privilege, a qualified right to
protection against disclosure of trade secrets has found ample recognition, and,
indeed, a denial of it would be difficult to defend. 8 Wigmore § 2212(3) (McNaughton
Rev. 1961). And see 4 Moore’s Federal Practice ¶¶ 30.12 and 34.15 (2nd ed. 1963
and Supp. 1965) and 2A Barron and Holtzoff, Federal Practice and Procedure
§ 715.1 (Wright ed. 1961). Congressional policy is reflected in the Securities
Exchange Act of 1934, 15 U.S.C. § 78x, and the Public Utility Holding Company
Act of 1933, id. § 79v, which deny the Securities and Exchange Commission
authority to require the disclosure of trade secrets or processes in
applications and reports. See also Rule 26(c)(7) of the Rules of Civil
Procedure, as revised, mentioned further hereinafter.

Illustrative cases raising trade secret problems are: E.I. Du Pont de Nemours
Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L. Ed. 1016 (1917), suit
to enjoin former employee from using plaintiff’s secret processes, countered by
defense that many of the processes were well know to the trade; Segal Lock &
Hardware Co. v. FTC, 143 F.2d 935 (2d Cir. 1944), question whether expert
locksmiths employed by FTC should be required to disclose methods used by them
in picking petitioner’s "pick-proof" locks; Dobson v. Graham, 49 F. 17 (E.D. Pa.
1889), patent infringement suit in which plaintiff sought to elicit from former
employees now in the hire of defendant the respects in which defendant’s
machinery differed from plaintiff’s patented machinery; Putney v. Du Bois Co.,
240 Mo. App. 1075, 226 S.W.2d 737 (1950), action for injuries allegedly
sustained from using defendant’s secret formula dishwashing compound. See 8
Wigmore § 2212(3) (McNaughton Rev. 1961); Annot., 17 A.L.R.2d 383; 49 Mich. L.
Rev. 133 (1950). The need for accommodation between protecting trade secrets, on
the one hand, and eliciting facts required for full and fair presentation of a
case, on other hand, is apparent. Whether disclosure should be required depends
upon a weighing of the competing interests involved against the background of
the total situation, including consideration of such factors as the dangers of
abuse, good faith, adequacy of protective measures, and the availability of
other means of proof.

The cases furnish examples of the bringing of judicial ingenuity to bear upon
the problem of evolving protective measures which achieve a degree of control
over disclosure. Perhaps the most common is simply to take testimony in camera.
Annot., 62 A.L.R.2d 509. Other possibilities include making disclosure to
opposing counsel but not to his client, E.I. Du Pont de Nemours Powder Co. v.
Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L. Ed. 1016 (1917); making disclosure
only to the judge (hearing examiner), Segal Lock & Hardware Co. v. FTC, 143 F.2d
935 (2d Cir. 1944); and placing those present under oath not to make disclosure,
Paul v. Sinnott, 217 F. Supp. 84 (W.D. Pa. 1963).

Rule 26(c) of the Rules of Civil Procedure, as revised, provides that the
judge may make "any order which justice requires to protect a party of person
from annoyance, embarrassment, oppression, or undue burden or expense, including
one or more of the following: ... (7) that a trade secret of other confidential
research, development, or commercial information not be disclosed or be
disclosed only in a designated way...." While the instant evidence rule extends
this underlying policy into the trial, the difference in circumstances between
discovery stage and trial may well be such as to require a different ruling at
the trial.

Subdivision (a). (1) The rule embodies the privilege protecting military
and state secrets described as "well established in the law of evidence," United
States v. Reynolds, 345 U.S. 1, 6, 73 S.Ct. 528, 531, 97 L. Ed. 727 (1953), and
as one "the existence of which has never been doubted," 8 Wigmore § 2378, p. 794
(McNaughton Rev. 1961).

The use of the term "national defense," without attempt at further
elucidation, finds support in the similar usage in statutory provisions relating
to the crimes of gathering, transmitting, or losing defense information, and
gathering or delivering defense information to aid a foreign government. 18
U.S.C. §§ 793, 794. See also 5 U.S.C. § 1002; 50 U.S.C. App. § 2152(d). In
determining whether military or sate secrets are involved, due regard will, of
course, be given to classification pursuant to executive order.

(2) The rule also recognizes a privilege for specified types of official
information and in this respect is designed primarily to resolve questions of
the availability to litigants of data in the files of governmental departments
and agencies. In view of the lesser danger to the public interest than in cases
of military and state secrets, the official information privilege is subject to
a generally overriding requirement that disclosure would be contrary to the
public interest. It is applicable to three categories of information.

(A) Intergovernmental opinions or recommendations submitted for consideration
in the performance of decisional or policy making functions. The policy basis of
this aspect of the privilege is found in the desirability of encouraging candor
in the exchange of views within the government. Kaiser Aluminum & Chemical Corp.
v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958); Davis v. Braswell
Motor Freight Lines, Inc., 363 F.2d 600 (5th Cir. 1966); Ackerly v. Ley, 420
F.2d 1336 (D.C. Cir. 1969). A privilege of this character is consistent with the
Freedom of Information Act, 5 U.S.C. § 552(b)(5), and with the standing of the
agency to raise questions of relevancy, though not a party, recognized in such
decisions as Boeing Airplane Co. v. Coggeshall, 108 U.S. App. D.C. 106, 280 F.2d
654, 659 (1960) (Renegotiation Board) and Freeman v. Seligson, 132 U.S. App.
D.C. 56, 405 F.2d 1326, 1334 (1968) (Secretary of Agriculture).

(B) Investigatory files compiled for law enforcement purposes. This category
is expressly made subject to the provisions of the Jencks Act, 18 U.S.C.
§ 3500, which insulates prior statements or reports of government witnesses in
criminal cases against subpoena, discovery, or inspection until the witness has
testified on direct examination at the trial but then entitles the defense to
its production. Rarely will documents of this nature be relevant until the
author has testified and thus place his credibility in issue. Further protection
against discovery of government files in criminal cases is found in Criminal
Procedure Rule 16(a) and (b). The breadth of discovery in civil cases, however,
goes beyond ordinary bounds of relevancy and raises problems calling for the
exercise of judicial control, and in making provision for it the rule implements
the Freedom of Information Act, 18 U.S.C. § 552(b)(7).

(C) Information exempted from disclosure under the Freedom of Information
Act, 5 U.S.C. § 552. In 1958 the old "housekeeping" statute which had been
relied upon as a foundation for departmental regulations curtailing disclosure
was amended by adding a provision that it did not authorize withholding
information from the public. In 1966 the Congress enacted the Freedom of
Information Act for the purpose of making information in the files of
departments and agencies, subject to certain specified exceptions, available to
the mass media and to the public generally. 5 U.S.C. § 552. These enactments are
significant expressions of Congressional policy. The exceptions in the Act are
not framed in terms of evidentiary privilege, thus recognizing by clear
implication that the needs of litigants may stand on somewhat different footing
from those of the public generally. Nevertheless, the exceptions are based on
values obviously entitled to weighty consideration in formulating rules of
evidentiary privilege. In some instances in these rules, exceptions in the Act
have been made the subject of specific privileges, e.g., military and state
secrets in the present rule and trade secrets in Rule 508. The purpose of the
present provision is to incorporate the remaining exceptions of the Act into
qualified privilege here created, thus subjecting disclosure of the information
to judicial determination with respect to the effect of disclosure on the public
interest. This approach appears to afford a satisfactory resolution of the
problems which may arise.

Subdivision (b). The rule vests the privileges in the government where
they properly belong rather than a party or witness. See United States v.
Reynolds, supra, p. 7, 345 U.S. 1, 73 S.Ct. 528, 97 L. Ed. 727. The showing
required as a condition precedent to claiming the privilege represents a
compromise between complete judicial control and accepting as final the decision
of a departmental officer. See Machin v. Zuckert, 114 U.S. App. D.C. 335, 316
F.2d 336 (1963), rejecting in part a claim of privilege by the Secretary of the
Air Force and ordering the furnishing of information for use in private
litigation. This approach is consistent with Reynolds.

Subdivision (c). In requiring the claim of privilege for state secrets to
be made by the chief departmental officer, the rule again follows Reynolds,
insuring consideration by a high-level officer. This provision is justified by
the lesser participation by the judge in cases of state secrets. The full
participation by the judge in official information cases, on the contrary,
warrants allowing the claim of privilege to be made by a government attorney.

Subdivision (d) spells out and emphasizes a power and responsibility on
the part of the trial judge. An analogous provision is found in the requirement
that the court certify to the Attorney General when the constitutionality of an
act of Congress is in question in an action to which the government is not a
party. 28 U.S.C. § 2403.

Subdivision (e). If privilege is successfully claimed by the government
in litigation to which it is not a party, the effect is simply to make the
evidence unavailable, as though a witness had died or claimed the privilege
against self-incrimination, and no specification of the consequences is
necessary. The rule therefore deals only with the effect of a successful claim
of privilege by the government in proceedings to which it is a party. Reference
to other types of cases serves to illustrate the variety of situations which may
arise and the impossibility of evolving a single formula to be applied
automatically to all of them. The privileged materials may be the statement of
government witness, as under the Jencks, which provides that, if the
government elects not to produce the statement, the judge is to strike the
testimony of the witness, or that he may declare a mistrial if the interests of
justice so require. 18 U.S.C. § 3500(d). Or the privileged materials may
disclose a possible basis for applying pressure upon witnesses. United States v.
Beekman, 155 F.2d 580 (2d Cir. 1946). Or they may bear directly upon a
substantive element of a criminal case, requiring dismissal in the event of a
successful claim of privilege. United States v. Andolschek, 142 F.2d 503 (2d
Cir. 1944); and see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.
Ed. 727 (1953). Or they may relate to an element of a plaintiff’s claim against
the government, with the decisions indicating unwillingness to allow the
government’s claim of privilege for secrets of state to be used as an offensive
weapon against it. United States v. Reynolds, supra; Republic of China v.
National Union Fire Ins. Co., 142 F. Supp. 551 (D. Md. 1956).

The rule recognizes the use of informers as an important aspect of law
enforcement, whether the informer is a citizen who steps forward with
information or a paid undercover agent. In either event, the basic importance of
anonymity in the effective use of informers is apparent, Bocchicchio v. Curtis
Publishing Co., 203 F. Supp. 403 (E.D. Pa. 1962), and the privilege of
withholding their identity was well established at common law. Roviaro v. United
States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L. Ed. 2d 639 (1957); McCormick
§ 148; 8 Wigmore § 2374 (McNaughton Rev. 1961).

Subdivision (a). The public interest in law enforcement requires that the
privilege be that of the government, state, or political subdivision, rather
than that of the witness. The rule blankets in as an informer anyone who tells a
law enforcement officer about a violation of law without regard to whether the
officer is one charged with enforcing the particular law. The rule also applies
to disclosures to legislative investigating committees and their staffs, and is
sufficiently broad to include continuing investigations.

Although the tradition of protecting the identity of informers has evolved in
an essentially criminal setting, noncriminal law enforcement situations involved
possibilities of reprisal against informers fall within the purview of the
considerations out of which the privilege originated. In Mitchell v. Roma, 265
F.2d 633 (3d Cir. 1959), the privilege was given effect with respect to persons
informing as to violations of the Fair Labor Standards Act, and in Wirtz v.
Continental Finance & Loan Co., 326 F.2d 561 (5th Cir. 1964), a similar case,
the privilege was recognized, although the basis of the decision was lack of
relevancy to the issues in the case.

Only identity is privileged; communications are not included except to the
extent that disclosure would operate also to disclose the informer’s identity.
The common law was to the same effect. 8 Wigmore § 2374, at p. 765 (McNaughton
Rev. 1961). See also Roviaro v. United States, supra, 353 U.S. at 60, 77 S.Ct.
at 627; Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679,
95 L. Ed. 879 (1951).

The rule does not deal with the question whether pre-sentence reports made
under Criminal Procedure Rule 32(c) should be made available to an accused.

Subdivision (b). Normally the "appropriate representative" to make the
claim will be counsel. However, it is possible that disclosure of the informer’s
identity will be sought in proceedings to which the government, state, or
subdivision, as the case may be, is not a party. Under these circumstances
effective implementation of the privilege requires that other representatives be
considered "appropriate." See, for example, Bocchicchio v. Curtis Publishing
Co., 203 F. Supp 403 (E.D. Pa. 1962), a civil action for libel, in which a local
police officer not represented by counsel successfully claimed the informer
privilege.

The privilege may be claimed by a state or subdivision of a state if the
information was given to its officer, except that in criminal cases it may not
be allowed if the government objects.

Subdivision (c) deals with situations in which the informer privilege
either does not apply or is curtailed.

(1) If the identity of the informer is disclosed, nothing further is to be
gained form efforts to suppress it. Disclosure may be direct, or the same
practical effect may result from action revealing the informer’s interest in the
subject matter. See, for example, Westinghouse Electric Corp. v. City of
Burlington, 122 U.S. App. D.C. 65, 351 F.2d 762 (1965), on remand City of
Burlington v. Westinghouse Electric Corp., 246 F. Supp. 839 (D.D.C. 1965), which
held that the filing of civil antitrust actions destroyed as to plaintiffs the
informer privilege claimed by the Attorney General with respect to complaints of
criminal antitrust violations. While allowing the privilege in effect to be
waived by one not its holder, i.e., the informer himself, is something of a
novelty in the law of privilege, if the informer chooses to reveal his identity,
further efforts to suppress it are scarcely feasible.

The exception is limited to disclosure to "those who would have cause to
resent the communication," in the language of Roviaro v. United States, 353 U.S.
53, 60, 77 S.Ct. 623, 627, 1 L. Ed. 2d 639 (1957), since disclosure otherwise,
e.g., to another law enforcing agency, is not calculated to undercut the objects
of the privilege.

If the informer becomes a witness for the government, the interests of
justice in disclosing his status as a source of bias or possible support are
believed to outweigh any remnant of interest in non-disclosure which then
remains. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967), in which the
trial judge permitted detailed inquiry into the relationship between the witness
and the government. Cf. Attorney General v. Briant, 15 M. & W. 169, 153 Eng.
Rep. 808 (Exch. 1846). The purpose of the limitation to witnesses for the
government is to avoid the possibility of calling persons as witnesses as a
means of discovery whether they are informers.

(2) The informer privilege, it was held by the leading case, may not be used
in a criminal prosecution to suppress the identity of a witness when the public
interest in protecting the flow of information is outweighed by the individual’s
right to prepare his defense. Roviaro v. United States, supra. The rule extends
this balancing to include civil as well as criminal cases and phrases it in
terms of "a reasonable probability that the informer may be able to give
testimony necessary to a fair determination of the issue of guilt or innocence
in a criminal case or of a material issue on the merits in a civil case." Once
the privilege is invoked a procedure is provided for determining whether the
informer can in fact supply testimony of such nature as to require disclosure of
his identity, thus avoiding a "judicial guessing game" on the question. United
States v. Day, 384 F.2d 464, 470 (3d Cir. 1967). An investigation in camera
is calculated to accommodate the conflicting interests involved. The rule also
spells out specifically the consequences of a successful claim of the privilege
in a criminal case; the wider range of possibilities in civil cases demands more
flexibility in treatment. See Advisory Committee’s Note to Rule 509(e), supra.

(3) One of the acute conflicts between the interest of the public in
non-disclosure and the avoidance of unfairness to the accused as a result of
non-disclosure arises when information form an informer is relied upon to
legitimate a search and seizure by furnishing probably cause for a warrant for
arrest or search. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L. Ed. 2d
62 (1967), rehearing denied 386 U.S. 1042, 87 S.Ct. 1474, 18 L. Ed. 2d 616. A
hearing in camera provides an accommodation of these conflicting
interests. United States v. Jackson, 384 F.2d 825 (3d Cir. 1967). The limited
disclosure to the judge avoids any significant impairment of secrecy, while
affording the accused a substantial measure of protection against arbitrary
police action. The procedure is consistent with McCray and the decisions
there discussed.

The central purpose of most privileges is the promotion of some interest or
relationship by endowing it with a supporting secrecy or confidentiality. It is
evident that the privilege should terminate when the holder by his own act
destroys this confidentiality. McCormick §§ 87, 97, 106; 8 Wigmore §§ 2242,
2327-2329, 2374, 2389-2390 (McNaughton Rev. 1961).

The rule is designed to be read with a view to what it is that the particular
privilege protects. For example, the lawyer-client privilege covers only
communications, and the fact that a client has discussed a matter with his
lawyer does not insulate the client against disclosure of the subject matter
discussed, although he is privileged not to disclose the discussion itself. See
McCormick § 93. The waiver here provided for is similarly restricted. Therefore
a client, merely by disclosing a subject which he had discussed with his
attorney, would not waive the applicable privilege; he would have to make
disclosure of the communication itself in order to effect a waiver.

By traditional doctrine, waiver is the intentional relinquishment of a known
right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L. Ed. 1461
(1938). However, in the confidential privilege situations, once confidentiality
is destroyed through voluntary disclosure, no subsequent claim of privilege can
restore it, and knowledge or lack of knowledge of the existence of the privilege
appears to be irrelevant. California Evidence Code § 912; 8 Wigmore § 2327 (McNaughton
Rev. 1961).

Ordinarily a privilege is invoked in order to forestall disclosure. However,
under some circumstances consideration must be given to the status and effect of
a disclosure already made. Rule 511, immediately preceding, gives voluntary
disclosure the effect of a waiver, while the present rule covers the effect of
disclosure made under compulsion or without opportunity to claim the privilege.

Confidentiality, once destroyed, is not susceptible of restoration, yet some
measure of repair can be accomplished by preventing use of the evidence against
the holder of the privilege. The remedy of exclusion is therefore made available
when the earlier disclosure was compelled erroneously or without opportunity to
claim the privilege.

With respect to erroneously compelled disclosure, the argument may be made
that the holder should be required in the first instance to assert the
privilege, stand his ground, refuse to answer, perhaps incur a judgment of
contempt, and exhaust all legal recourse, in order to sustain his privilege. See
Fraser v. United States, 145 F.2d 139 (6th cir. 1944), cert. denied 324 U.S.
849, 65 S.Ct. 684, 89 L. Ed. 1409; United States v. Johnson, 76 F. Supp. 538
(M.D. Pas. 1947), aff’d 165 F.2d 42 (3rd Cir. 1947), cert. denied 332 U.S. 852,
68 S.Ct. 355, 92 L. Ed. 422, reh. denied 333 U.S. 834, 68 S.Ct. 457, 92 L. Ed.
1118. However, this exacts of the holder greater fortitude in the face of
authority than ordinary individuals are likely to possess, and assumes
unrealistically that a judicial remedy is always available. In
self-incrimination cases, the writers agree that erroneously compelled
disclosures are inadmissible in a subsequent criminal prosecution of the holder,
Maguire, Evidence of Guilt 66 (1959); McCormick § 127; 8 Wigmore § 2270 (McNaughton
Rev. 1961), and the principle is equally sound when applied to other privileges.
The modest departure from usual principles of res judicata which occurs when the
compulsion is judicial is justified by the advantage of having one simple rule,
assuring at least one opportunity for judicial supervision in every case.

The second circumstance stated as a basis for exclusion is disclosure made
without opportunity to the holder to assert his privilege. Illustrative
possibilities are disclosure by an eavesdropper, by a person used in the
transmission of a privileged communication, by a family member participating in
psychotherapy, or privileged data improperly made available from a computer
bank.

Subdivision (a). In Griffin v. California, 380 U.S. 609, 614, 85 S.Ct.
1229, 1232, 14 L. Ed. 2d 106 (1965), the Court pointed out that allowing comment
upon the claim of a privilege "cuts down on the privilege by making its
assertion costly." Consequently it was held that comment upon the election of
the accused not to take the stand infringed upon his privilege against
self-incrimination so substantially as to constitute a constitutional violation.
While the privileges governed by these rules are not constitutionally based,
they are nevertheless founded upon important policies and are entitled to
maximum effect. Hence the present subdivision forbids comment upon the exercise
of a privilege, in accordance with the weight of authority. Courtney v. United
States, 390 F.2d 521 (9th Cir. 1968); 8 Wigmore §§ 2243, 2322, 2386; Barnhart,
Privilege in the Uniform Rules of Evidence, 24 Ohio St. L.J. 131, 137-138
(1963). Cf. McCormick § 80.

Subdivision (b). The value of a privilege may be greatly depreciated by
means other than expressly commenting to a jury upon the fact that it was
exercised. Thus, the calling of a witness in the presence of the jury and
subsequently excusing him after a side-bar conference may effectively convey to
the jury the fact that a privilege has been claimed, even though the actual
claim has not been made in their hearing. Whether a privilege will be claimed is
usually ascertainable in advance and the handling of the entire matter outside
the presence of the jury is feasible. Destruction of the privilege by innuendo
can and should be avoided. Tallo v. United States, 344 F.2d 467 (1st Cir. 1965);
United States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957); San Fratello v. United
States, 343 F.2d 711 (5th Cir. 1965); Courtnery v. United States, 390 F.2d 521
(9th Cir. 1968); 6 Wigmore § 1808, pp. 275-276; 6 U.C.L.A. L. Rev. 455 (1959).
This position is in accord with the general agreement of the authorities than an
accused cannot be forced to make his election not to testify in the presence of
the jury. 8 Wigmore § 2268, p. 407 (McNaughton Rev. 1961).

Unanticipated situations are, of course, bound to arise, and much must be
left to the discretion of the judge and the professional responsibility of
counsel.

Subdivision (c). Opinions will differ as to the effectiveness of a jury
instruction not to draw an adverse inference form the making of a claim of
privilege. See Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, 19 L. Ed. 2d
70 (1967). Whether an instruction shall be given is left to the sound judgment
of counsel for the party against whom the adverse inference may be drawn. The
instruction is a matter of right, if requested. This is the result reached in
Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L. Ed. 257 (1939),
holding that an accused in entitled to an instruction under the statute (now 18
U.S.C. § 3481) providing that his failure to testify creates no presumption
against him.

The rule finds support in several directions. The well known Massachusetts
Act of 1898 allows in evidence the declaration of any deceased person made in
good faith before the commencement of the action and upon personal knowledge.
Mass. G. L., c. 233, § 65. To the same effect is R.I.G.L. § 9-19-11. Under other
statutes, a decedent’s statement is admissible on behalf of his estate in
actions against it, to offset the presumed inequality resulting from allowing a
surviving opponent to testify. California Evidence Code § 1261; Conn. G. S.,
§ 52-172; and statutes collected in 5 Wigmore § 1576. See also Va. Code § 8-286,
allowing statements made when capable by a party now incapable of testifying.

In 1938 the Committee on Improvements in the Law of Evidence of the American
Bar Association recommended adoption of a statute similar to that of
Massachusetts but with the concept of unavailability expended to include, in
addition to death, cases of insanity or inability to produce a witness or take
his deposition. 63 A.B.A. Reports 570, 584, 600 (1938). The same year saw
enactment of the English Evidence Act of 1938, allowing written statements made
on personal knowledge, if declarant is deceased or otherwise unavailable or if
the court is satisfied that undue delay or expense would otherwise be caused,
unless declarant was an interested person in pending or anticipated relevant
proceedings. Evidence Act of 1938, 1 & 2 Geo. 6, c. 28; Cross on Evidence 482
(3rd Ed. 1967).

Model Code Rule 503(a) provided broadly for admission of any hearsay
declaration of an unavailable declarant. No circumstantial guarantees of
trustworthiness were required. Debate upon the floor of the American Law
Institute did not seriously question the propriety of the rule but centered upon
what should constitute unavailability. 18 A.L.I. Proceedings 90-134 (1941).

The Uniform Rules draftsman took a less advanced position, more in the
pattern of the Massachusetts statute, and invoked several assurances of
accuracy: recency of perception, clarity of recollection, good faith, and
antecedence to the commencement of the action. Uniform Rule 63(4)(c).

Opposition developed to the Uniform Rule because of its countenancing of the
use of statements carefully prepared under the tutelage of lawyers, claim
adjusters, or investigators with a view to pending or prospective litigation.
Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence
(Art. VIII. Hearsay Evidence), Cal. Law Rev. Comm’n, 318 (1962); Quick,
Excitement, Necessity and the Uniform Rules: A Reappraisal of Rule 63(4), 6
Wayne L. Rev. 204, 219-224 (1960). To meet this objection, the rule excludes
statements made at the instigation of a person engaged in investigating,
litigating, or setting a claim. It also incorporates as safeguards the good
faith and clarity of recollection required by the Uniform Rule and the exclusion
of a statement by a person interested in the litigation provided by the English
act.

With respect to the question whether the introduction of a statement under
this exception against the accused in a criminal case would violate his right of
confrontation, reference is made to the last paragraph of the Advisory
Committee’s Note under Exception (1), supra.